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HABEUS CORPUS AND DETENTIONS 

AT GUANTANAMO BAY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JUNE 26, 2007 

Serial No. 110–152 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 26, 2007 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 3 

WITNESSES 

Mr. Gregory Katsas, Principal Deputy Associate Attorney General, Office 

of the Associate Attorney General, U.S Department of Justice 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Lieutenant Commander Charles D. Swift, Judge Advocate General Corps, 

U.S. Navy, Office of Military Commissions 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Mr. William H. Taft, IV, Of Counsel, Fried, Frank, Harris, Shriver, Jacobsen, 

LLP 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 32 

Mr. Bradford Berenson, Partner, Sidley Austin, LLP 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Mr. Jonathan Hafetz, Litigation Director of the Liberty and National Security 

Project, Brennan Center for Justice, New York University School of Law 

Oral Testimony ..................................................................................................... 70 

Prepared Statement ............................................................................................. 72 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 98 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 123 

(1) 

HABEUS CORPUS AND DETENTIONS 

AT GUANTANAMO BAY 

TUESDAY, JUNE 26, 2007 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:04 p.m., in room 

2237, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Wasserman Schultz, Ellison, 

Conyers, Watt, Cohen, Jackson Lee, Franks, Pence, and Jordan. 

Staff present: Robert Reed, Majority Counsel; David Lachmann, 

Subcommittee Chief of Staff; Susana Gutierrez, Majority Professional Staff Member; Paul Taylor, Minority Counsel; George Slover, 

Majority Counsel; Crystal Jezierski, Minority Counsel; and Kanya 

Bennett, Majority Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. 

Before I begin, I would remind all those in attendance that the 

rules of the House of Representatives do not permit demonstrations 

of any kind by the spectators. The work we are doing today is very 

important. We have the opportunity to get answers to questions 

that go to the core of our liberties and the manner in which the 

current war or wars are being conducted. So I hope everybody will 

observe the rules of the House. 

Today’s hearing will examine the current state of the right of habeas corpus as it applies to the policy of detentions at Guantanamo 

Bay. 

The Chair recognizes himself for 5 minutes for an opening statement. 

This hearing is the second in our series titled, ‘‘The Constitution 

in Crisis: The State of Civil Liberties in America.’’ 

The right to petition for a writ of habeas corpus, the great writ, 

has been a fundamental pillar of our legal system since the time 

of Magna Carta in 1215. So fundamental to our system of laws and 

our liberties did the framers consider it that the great writ was enshrined in article I of our Constitution several years before adoption of the Bill of Rights. 

Alexander Hamilton in ‘‘Federalist Paper No. 81’’ explained the 

need to preserve the writ of habeas corpus by quoting Blackstone: 

‘‘To bereave a man of life or by violence to confiscate his estate 

2 

without accusation or trial would be so gross and notorious an act 

of despotism as must at once convey the alarm of tyranny throughout the whole Nation. But confinement of the person by secretly 

hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking and therefore a more dangerous 

engine of arbitrary government.’’ 

Hamilton goes on to say that: ‘‘As a remedy for this fatal evil, 

Blackstone is everywhere peculiarly emphatical in his encomiums 

on the habeas corpus act, which in place he calls the bulwark of 

the British constitution.’’ And so it has been a bulwark of our Constitution and our freedoms until now. 

This Administration seems to believe that it has greater wisdom 

and virtue than governments of the last 800 years, that it can be 

trusted to make correct and just determinations about who should 

be locked up without any independent review. This President 

claims the power to point his finger at anybody who is not an 

American citizen and say, ‘‘You are an enemy combatant because 

I say so. And because I say so, we are going to keep you in jail forever, with no hearing, no writ of habeas corpus, no court proceeding, no confrontation of witnesses, no probable cause, no due 

process of any kind.’’ No executive in an English-speaking country 

has claimed such tyrannical power since before Magna Carta 800 

years ago. 

One of the complaints in the Declaration of Independence—and 

no one today reads the Declaration of Independence—we just read 

the first couple paragraphs, ‘‘We hold these truths to be self-evident,’’ and so forth. But most of the Declaration of Independence 

is a list of complaints against tyrannical actions of the British king, 

tyrannical acts so terrible that they justified violent revolution for 

independence. 

One of the complaints against the king was, ‘‘He has combined 

with others′′—Parliament; we didn’t want to name Parliament— ′′He has combined with others to deprive us of the benefits of trial 

by jury.’’ We now seem to be going George III one better. We now 

conspire to deprive people of the benefits of trial, period, by jury 

or otherwise. It is an extraordinary and dubious claim. 

What has been the result? A violation of our laws and values and 

a self-inflicted stain on our national honor. Even the Administration will now concede that it has held and continues to hold individuals who have done nothing against the United States, who are 

not a threat to the United States. Many of those people have sat 

in Guantanamo for years, often in solitary confinement. Some have 

been subjected to torture or creative questioning or whatever euphemism you prefer. 

Benjamin Franklin observed that, ‘‘Those who would give up essential liberty to purchase a little temporary safety deserve neither 

liberty nor safety.’’ A devil’s bargain, to be sure, but if this Administration has asked us to sacrifice liberty, has this lawlessness really made us any safer? Is there really no alternative than to abandon the rule of law? 

I continue to believe that we have no alternative but to defend 

the rule of law. That is why we are here today. 

The current policy has created a law-free zone outside our civil 

law system, outside our system of military law, outside our crimiVerDate Aug 31 2005 12:37 Jan 21, 2009 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062607\36345.000 HJUD1 PsN: DOUGA
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nal justice system, outside the laws of war, outside every domestic 

and international obligation this Nation has ever undertaken voluntarily or demanded of other countries. 

We have faced many threats over the years, and we have prevailed. At times, we have forgotten who we are and acted in ways 

which, in calmer times, we have deeply regretted, such as, for example, the Alien and Sedition Acts, the Palmer raids, the interment of Americans of Japanese descent during World War II. One 

day, we will look back on this period with the same sense of shame 

and regret. 

Today’s witnesses will address the legal and practical issues of 

the policy as it now exists. 

As many of you know, I have introduced legislation to restore the 

right of habeas corpus, simply to determine whether someone is 

being lawfully detained or is being detained under unlawful conditions. This Administration’s credibility, however damaged, is beside 

the point. Blackstone was right, Hamilton was right, Franklin was 

right. Our Nation has been right for over 200 years. No President, 

no matter how virtuous, should ever have the power, should ever 

have the authority to throw people into prison, to make them disappear and not to have to answer to anyone for his actions. No person should ever be subject to disappearance. We used to talk about 

Argentina under the junta and the desaparecidos. We should have 

no such thing in the United States. 

I look forward to the testimony of our witnesses. 

And I can think of no more important issue for the Subcommittee 

on the Constitution, Civil Rights and Civil Liberties to consider. 

Without the right of habeas corpus there is no guarantee of our liberty, there is no guarantee of our life. 

I yield back the balance of my time. 

I would now recognize the distinguished Ranking minority Member, the gentleman from Arizona, Mr. Franks, for his opening statement. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, habeas corpus is an ancient right that grants 

those held by the government the right to require the government 

to justify their confinement. While the Constitution references the 

habeas right, it does not create that right. It has always been recognized that such a right is granted by statute and enacted by the 

legislature. 

The people have always found it appropriate in America that unlawful enemy combatants, such as terrorists who take up arms 

against Americans and disguise themselves as civilians in violation 

of the laws of war, are appropriately not tried in Federal courts but 

by military courts. 

That is because terrorists are not just common criminals. They 

are blood-thirsty murderers who are plotting in disguise to kill as 

many innocent Americans as possible. They see themselves at war 

with all Americans, and should be treated as such. 

General George Washington used military courts to try spies. 

The co-conspirators of John Wilkes Booth, who assassinated President Lincoln, were tried by military commissions, as were members 

of the KKK. 

4 

During World War II, in a 1940 case of ex parte Quirin, the Supreme Court held that enemy combatants who do not wear the uniform of a national army and those who sneak into this country to 

wage war and destroy innocent human life are subject to the trial 

and punishment by military tribunals, not ordinary Federal courts. 

Indeed, the Supreme Court upheld a trial by a military commission of saboteurs that included a naturalized citizen who was executed within 60 days of his capture. 

A few years later, in Johnson v. Eisentrager, the Supreme Court 

held that ‘‘not one word can be cited’’ and ‘‘no decision of this court 

supports the view’’ that the Constitution extends its protection to 

foreign enemies. 

As a side note, Mr. Chairman, if indeed that were true, engagement in the battlefield would be impossible, because we would have 

to have probable cause at the moment. We would have to give them 

their rights to all kinds of insane notions. It would make war absolutely impossible. 

The Supreme Court—— 

Mr. NADLER. Since the gentleman addressed me, would he yield 

for a second? 

Mr. FRANKS. I sure would. 

Mr. NADLER. Thank you. 

I would simply point out, in terms of what you were just saying—and I think that this whole hearing may turn on that, in effect, and that is why I am glad you mentioned it—the Supreme 

Court decisions that you talked about dealt with people whose status as combatants, as foreign enemies, were not questioned: the 

four German saboteurs, et cetera. And whether citizens of this 

country or not, they were landed here by submarine, and no one 

questioned that they were, in fact, enemy combatants. 

What we are dealing with here with habeas corpus, in many 

cases, are people who claim they are not enemy combatants, who 

may be permanent, legal residents of the United States, picked up, 

alleged by the President or by somebody in the Federal Government to be an enemy combatant but they deny that. So the question isn’t, how do you handle enemy combatants? How do you handle people who are alleged to be enemy combatants who claim they 

aren’t? And that is where we need habeas corpus. 

Mr. FRANKS. Reclaiming my time, Mr. Chairman, I think if German saboteurs were to land on the shores of America today, they 

would find that they could probably get away with saying something as ridiculous as, ‘‘Well, we didn’t mean to do it.’’ And there 

certainly would be, unfortunately, support among the liberal intelligentsia in this country to back them up on that. 

But with that said, the Supreme Court noted that habeas corpus 

rights afforded to enemy combatants would ‘‘hamper the war effort 

and bring aid and comfort to the enemy. Habeas corpus proceedings would diminish the prestige of our commanders, not only 

with the enemies, but with wavering neutrals. 

‘‘It would be difficult to devise a more effective fettering of a field 

commander than to allow the very enemies he is ordered to reduce 

to submission to call him into account in his own civil courts and 

divert his efforts and attention from the military offensive abroad 

to the legal defensive at home. 

5 

‘‘Nor is it unlikely that the result of such enemy litigiousness 

would be a conflict between judicial and military opinion, highly 

comforting to the enemies of the United States.’’ 

We were attacked on 9/11 and 3,000 innocent American citizens 

were murdered by lawless terrorists disguised as civilians. Congress authorized the President to use all necessary force to stop future attacks. 

The Supreme Court held that detention is ‘‘so fundamental and 

accepted an incident to war as to be an exercise of the ‘necessary 

and appropriate force’ Congress has authorize the President to 

use.’’ 

Even so, Congress enacted legislation that provides terrorists 

with the following rights, far beyond what is required by the Constitution, including the right to a full and fair trial, a presumption 

of innocence, government-provided defense counsel, an opportunity 

to obtain witnesses and evidence, an obligation on the part of government to disclose exculpatory evidence to the defense, a right to 

cross-examination of witnesses, a right not to testify against themselves, and a right at a minimum of two appeals: one through the 

military justice system and the Federal courts. 

Clearly, far from suspending the writ of habeas corpus, Congress 

has gone far beyond what the Constitution requires. Indeed, the 

protections in the Military Commissions Act are considerably more 

generous to those who seek to kill innocent Americans than anything the U.S. or any other nation in the history of the world has 

previously afforded its adversaries. 

The new Habeas Corpus Restoration Act of 2007 would throw out 

the current system for detaining terrorists and would treat Osama 

bin Laden as if he were a common thief with citizenship in the 

United States. Terrorists would have one of the most awesome 

weapons in the American legal system, and that is the power to 

shield themselves from anti-terrorism efforts by miring them in 

years of costly litigation. 

If this Congress makes the mistake of granting constitutional 

protections to the most insidious enemies this Nation has ever 

faced, the Congress itself, and not the Constitution, will have chosen that tragic course. 

Mr. Chairman, I yield back. 

Mr. NADLER. Thank you. 

Let me simply say that I think the Nazis were more insidious. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I would ask other Members to submit their statements for the record, without objection. Without objection, all Members will have 5 legislative days to submit opening statements for 

inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

We will now turn to our witnesses. As we ask questions of our 

witnesses, the Chair will recognize Members in the order of their 

seniority on the Subcommittee, alternating between majority and 

minority, provided the Member is present when his or her turn arrives. Members who are not present when their turn begins will be 

recognized after the other Members have had the opportunity to 

ask their questions. The Chair reserves the right to accommodate 

6 

a Member who is unavoidably late or only able to be with us for 

a short time. 

Gentlemen, your written statements will be made part of the 

record in its entirety. I would ask that you now summarize your 

testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow, and then to red when the 5 minutes are up. We don’t give 

out fines here for traffic violations, but we do ask that you try to 

observe the red light. 

Our first witness is Gregory Katsas. He is the principal deputy 

associate attorney general of the United States. Mr. Katsas was actively involved in the Rasul, Hamdi and Hamdan cases in which 

the Supreme Court addressed the rights of aliens detained as 

enemy combatants at Guantanamo Bay. He also recently argued 

Boumediene v. Bush, in which the D.C. Circuit held that the Guantanamo detainees have no constitutional right to habeas corpus. He 

served as a law clerk to the late Judge Edward Becker of the 

United States Court of Appeals for the 3rd Circuit and to Justice 

Clarence Thomas of the United States Supreme Court. 

Our next witness is Charles Swift. He is a lieutenant commander 

in the Judge Advocate General’s Corps of the United States Navy. 

He is currently assigned to the Department of Defense Office of 

Military Commissions, where he serves as lead counsel for Salim 

Ahmed Hamdan. He graduated from the U.S. Naval Academy in 

1984, Seattle University Law School cum laude in 1994, and Temple University School of Law, where he obtained a LMM in trial 

advocacy with honors. 

Our next witness, William Howard Taft IV, is of counsel resident 

with Fried, Frank, Harris, Schriver & Jacobson, LLP. Mr. Taft 

originally joined the law firm in 1992. Prior to joining Fried, Frank, 

Mr. Taft served as U.S. permanent representative to NATO, deputy 

secretary of defense, acting secretary of defense and as general 

counsel for the Department of Defense. His most recent government service prior to returning to Fried, Frank was as a legal adviser to the Department of State in the current Bush administration. Mr. Taft received his J.D. in 1969 from Harvard Law School 

and his B.A. in 1966 from Yale University. 

Our next witness, Bradford Berenson, currently is a litigation 

partner with Sidley and Austin in Washington. Prior to joining 

Sidley and Austin, Mr. Berenson served as associate counsel to the 

President of the United States from January 2001 through January 

2003. Mr. Berenson holds a B.A. summa cum laude from Yale University and a J.D. magna cum laude from Harvard Law School. 

Following graduation from Harvard Law School, he clerked for 

Judge Laurence H. Silberman of the U.S. Court of Appeals of the 

District of Columbia Circuit and for Justice Anthony M. Kennedy 

of the United States Supreme Court. 

Our final witness, Jonathan Hafetz, is litigation director of the 

Liberty and National Security Project at the Brennan Center for 

Justice at New York University Law School, which, I might add, 

is in my congressional district and of which we are very proud. He 

is actively involved in post-9/11 litigation involving detainee rights 

and is lead counsel on several leading detention cases, including alVerDate Aug 31 2005 12:37 Jan 21, 2009 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062607\36345.000 HJUD1 PsN: DOUGA
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Marri v. Wright. Mr. Hafetz received his J.D. from Yale Law School 

and his B.A. from Amherst College, where he graduated Phi Beta 

Kappa and magna cum laude. Mr. Hafetz also holds a master’s degree in history, with high honors from Oxford University, and 

serves as a Fulbright scholar in Mexico. Mr. Hafetz clerked for 

Judge Sandra L. Lynch of the U.S. Court of Appeals for the 1st Circuit and for Judge Jed Rakoff of the U.S. District Court for the 

Southern District of New York. 

I am pleased to welcome all of you. 

As a reminder, each of your written statements will be made part 

of the record in its entirety. I told you this already, but here it is 

again. I would ask that you now summarize your testimony in 5 

minutes or less. To help you stay within that time, I told you about 

the light already. 

Before we begin, it is customary to swear in our witnesses. 

[Witnesses sworn.] 

Let the record reflect that each of the witnesses answered in the 

affirmative. 

You may be seated. 

The first witness is Mr. Katsas. And you are recognized for 5 

minutes, sir. 

TESTIMONY OF GREGORY KATSAS, PRINCIPAL DEPUTY ASSOCIATE ATTORNEY GENERAL, OFFICE OF THE ASSOCIATE ATTORNEY GENERAL, U.S DEPARTMENT OF JUSTICE 

Mr. KATSAS. Mr. Chairman, Members of the Subcommittee, I appreciate this opportunity to discuss the writ of habeas corpus and 

the judicial review procedures that Congress has provided to the 

aliens captured abroad and detained as enemy combatants at 

Guantanamo Bay, Cuba. 

Since September 11, 2001, the United States has been engaged 

in an armed conflict unprecedented in our history. Like past enemies we have faced, al-Qaida and its affiliates possess both the intention and the ability to inflict catastrophic harm on this Nation. 

But unlike our past enemies, al-Qaida forces show no respect for 

the laws of war as they direct their attacks primarily against civilians. In 1 day, they destroyed the World Trade Center, severely 

damaged the Pentagon and inflicted greater casualties than did the 

Japanese at Pearl Harbor. They are actively plotting further attacks. 

To prevent such attacks, the United States is detaining some 

members of al-Qaida and the Taliban at a military base leased by 

the United States at Guantanamo Bay. The majority of the Guantanamo detainees already have been released or transferred to 

other countries, but the U.S. continues to hold others either because they remain a threat or because no other country will take 

them. 

Each detainee receives a hearing before a combatant status review tribunal, or CSRT. These CSRTs afford detainees more rights 

than ever before provided for wartime status determinations. They 

also afford more rights than those deemed by the Supreme Court 

to be appropriate for United States citizens detained as enemy 

combatants on American soil, and they afford more rights than 

8 

those given for status determinations under the Geneva Convention. 

Congress has twice recently provided the detainees with even 

greater protections than that. 

In the Detainee Treatment Act, Congress prohibited the government from subjecting the detainees to degrading treatment, established additional protections for future CSRTs, and guaranteed judicial review for final CSRT decisions and final convictions by military commissions. 

At the same time, Congress barred the detainees from seeking 

judicial review through habeas corpus, consistent with the traditional understanding that habeas is unavailable to aliens held outside the United States, particularly during wartime. 

In the Military Commissions Act, Congress codified procedures 

for war crimes prosecutions before military commissions. The MCA 

affords defendants more rights than those available in past military commission prosecutions by the United States and more rights 

than those available in war crimes prosecutions by international 

tribunals. Like the DTA, the MCA provides for judicial review but 

forecloses review through habeas. 

Extending habeas to aliens abroad is both unnecessary and unwise. Over 50 years ago, the Supreme Court, in Johnson v. 

Eisentrager, held that aliens outside the United States have no 

constitutional right to habeas. As Justice Jackson explained, ‘‘Wartime habeas trials would bring aid and comfort to the enemy.’’ He 

continued with the compelling language that Mr. Franks has already cited. 

The Supreme Court’s decision in Rasul, which addressed only the 

scope of the state habeas statute, does not undermine the constitutional holding of Eisentrager. 

Habeas restrictions are also important for national security, as 

explained by Justice Jackson in Eisentrager and as borne out by 

the recent experience at Guantanamo. 

During the last few years, more than 200 habeas actions were 

filed on behalf of more than 300 of the Guantanamo detainees. The 

litigation imposed substantial burdens on the operation of a military base abroad in time of war, it preventing military commission 

trials from even beginning, and it impeded interrogations critical to 

preventing further attacks. 

These burdens would be even greater if habeas were made available to alien enemy combatants in larger conflicts such as World 

War II, when the United States detained more than 2 million such 

combatants. 

Habeas review is also unnecessary. As I have noted, the CSRT 

and military commission procedures give the detainees unprecedented protections. Moreover, Congress has afforded the detainees 

with judicial review encompassing all legal claims, constitutional or 

statutory. That alone would make the existing scheme an adequate 

substitute for habeas. 

In sum, the existing system represents a careful balance between 

the interests of detainees and the exigencies of wartime. It is both 

constitutional and prudent, and it should not be upset. 

Thank you very much. 

[The prepared statement of Mr. Katsas follows:] 

9 

PREPARED STATEMENT OF GREGORY G. KATSAS


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Mr. NADLER. Thank you. 

Commander Swift, you are recognized for 5 minutes. 

TESTIMONY OF LIEUTENANT COMMANDER CHARLES D. 

SWIFT, JUDGE ADVOCATE GENERAL CORPS, U.S. NAVY, OFFICE OF MILITARY COMMISSIONS 

Commander SWIFT. Thank you, Mr. Chairman and Members of 

the House Judiciary Subcommittee, for inviting me to speak to you 

today. 

My testimony is given in my capacity as Mr. Hamdan’s military 

defense counsel, and it does not represent the opinions of either the 

Department of the Navy or the Department of Defense. 

I want to thank the Chairman and the Committee for pausing 

to carefully reconsider the issue of denying habeas rights to an accused designated for trial by military commission. 

I believe that any commission that is tried under the MCA will 

ultimately be determined, once again, to be unlawful because of inherent flaws in it. But whether I am right or not, a challenge to 

the legislation should happen immediately. 

Imagine if the courts had abstained, as Mr. Katsas and others 

had argued, back when Hamdan was in the D.C. Circuit. There 

would have been probably 20 trials held by the time the Supreme 

Court finally came down in striking down what the government at 

that time said was constitutional. 

No one would have benefited from the delay of legislative hearings. And I agree with Mr. Katsas: This really is about timing more 

than about hearings, at least as far as military commissions go. 

And so, the right to have pre-trial habeas to challenge the system 

is inherently important. 

Instead of doing that, instead of ensuring that the judiciary took 

a look at a sweeping act like the MCA, which basically rewrote 

military justice, the measures within section 7 stripped jurisdiction 

from the Federal courts until after any hearing was concluded. 

The MCA is inconsistent with prior interpretations of the Constitution, including the suspension clause, the exceptions clause, 

equal protection and prohibitions against bills of attainder. To strip 

jurisdiction at the same time as these ideas are being put forth was 

to create an extremely dangerous and unwise act. 

And we saw exactly what was going to happen as soon as we got 

down to the military commissions, because not one, but two, military justices immediately dismissed the actions against my client 

and against a Canadian citizen because the CSRT that has been 

lauded here today was found to be inadequate to determine jurisdiction, because it hadn’t complied with the Geneva Convention 

and it hadn’t even complied with the requirements set out in the 

MCA. 

Now, normally that would be able to be appealed to a court created under the MCA. The problem is, the Administration didn’t 

create the court. That is right: There is no place to appeal it right 

now. So we are all going to sit around while the Administration 

scrambles to put together a court. 

Now, I think even the Administration would admit that putting 

together the court after the issue is sort of closing the gate after 

21 

the horse is out of the barn door. It is not going to look good. It 

hurts our reputation even farther. 

I have submitted in my written testimony a proposal to change 

that expedites the legislation to be heard before the Federal courts. 

It was drafted by myself and Professor Neal Katyal, my co-counsel, 

back when the MCA was being written. But I would submit to you 

here today that current events demonstrate its need even more. 

Right now, we are sitting. Had we passed a position for the D.C. 

Circuit to take on the cases immediately, we wouldn’t be sitting 

around waiting for yet another appeal, we would be arguing it now, 

which is appropriate. 

Now, no less than Colin Powell—and I am in complete agreement—has argued that the entire thing should be closed down and 

we should return to our normal system of justice, be it military or 

civilian. And as a counsel, I believe that will work. 

But if we are not going to do that, if we continue to want to use 

the MCA system, then at least we should get an immediate judgement on whether it is constitutional or not, rather than postpone 

it. 

You know, I will often tell people, ‘‘What is this all about?’’ Well, 

a few years back, I was at my 20th reunion at the Naval Academy. 

And a classmate of mine cut me off, put me on the corner—he was 

a Marine colonel, the type that—I best describe Mark’s career as, 

if they have shot at Americans, they have probably shot at Mark. 

I thought, ‘‘Well, maybe he had some objections to my clients, the 

so-called terrorists.’’ But that is not what he said. He said to me, 

‘‘I fight for the rule of law. Men died for this. Don’t you dare stop.’’ 

Well, I think we owe it to Mark and we owe it to everyone else 

to ensure that whatever happens in Guantanamo, it represents the 

best of the rule of law. 

Thank you very much. 

[The prepared statement of Commander Swift follows:] 

22 

PREPARED STATEMENT OF CHARLES D. SWIFT


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Mr. NADLER. Thank you. 

I now recognize Mr. Taft for 5 minutes. 

TESTIMONY OF WILLIAM H. TAFT, IV, OF COUNSEL, 

FRIED, FRANK, HARRIS, SHRIVER, JACOBSEN, LLP 

Mr. TAFT. Thank you, Mr. Chairman. 

Let me address just two issues specifically: first, whether upon 

the filing of a habeas corpus petition, a court should determine the 

lawfulness of detaining persons at Guantanamo Bay; and second, 

how those persons who are lawfully detained should be treated. 

Before the enactment of the Military Commissions Act last year, 

detainees in Guantanamo were entitled to have the lawfulness of 

their detention reviewed after filing petitions for habeas corpus. 

The benefits of that procedure were considerable, not so much for 

the detainees—none of whom was released by a court—as for establishing beyond argument the legitimacy of holding persons who 

continue to present a threat to the United States as long as the terrorists continue to fight us. 

It should be recalled in considering this question that the Supreme Court has on two occasions affirmed the lawfulness of detaining persons captured in the conflict with al-Qaida and the 

Taliban as long as they pose a threat to the United States. This 

is black letter law of war. 

Currently, whether a person poses a threat to us is determined 

by the military, with only very limited judicial review of the proceedings of the combatant status review tribunal. 

Having the determination made by a court following established 

habeas procedures would, in my view, greatly enhance its credibility and be consistent with our legal traditions. 

Beyond that, providing habeas corpus review of the limited number of cases at Guantanamo will impose only a very modest burden 

on the courts. 

Fewer than 400 people are currently detained at Guantanamo, 

and I understand that a substantial number of these may soon return to their own countries. By comparison, the courts handle 

many thousands of habeas petitions each year. 

Also, the cases are comparatively straightforward. Many detainees freely state that they would try to harm the United States if 

they are released. Others are known to be members of al-Qaida, 

have been captured while attacking our troops or are otherwise 

known to pose a threat to us. 

In short, practically all of the detainees at Guantanamo are there 

for a good reason and should remain in custody, either there or 

elsewhere. 

Judicial review of such cases should be relatively uncomplicated 

when compared with the voluminous trial and appellate records involved in most habeas cases. 

In the event, however, that a court were to be presented with a 

case that raised serious questions about the lawfulness of detention, surely those questions should be carefully considered, and no 

institution is better equipped by experience to do that than a court. 

In proposing that we return to the system that was in place previously, I want to stress that I do not believe that this issue should 

be treated as a constitutional one, but simply as a matter of policy. 

32 

Whether Congress has the power to bar habeas review to aliens 

detained in Guantanamo is a question that will be resolved by the 

courts. My guess is that it probably does have that power. 

But Congress should not want to bar the habeas review that the 

Supreme Court found the aliens in Guantanamo were entitled to 

under our statutes. It should want, instead, to have the judiciary 

endorse the detention of the terrorists who threaten us. 

For the very reason that the law of war allows us to detain persons without charging them with criminal conduct for extended periods, it is all the more important to be sure that the process for 

determining who those people are is beyond reproach. 

Unlike wars between national armies, where it is easy to tell 

who the enemy is, identifying those terrorists we are entitled to detain is more difficult. 

Regarding the standard of treatment for detainees, I believe we 

should have followed our practice in previous wars of treating all 

captured persons in accordance with the Geneva Conventions, 

whether or not they were entitled to this. Any state, after all, can 

designate its enemies as unlawful combatants. In fact, North Vietnam and Iran have led the way in this practice in recent years. 

But we should not follow them. Our own service men, diplomats 

and ordinary citizens will pay the penalty of that precedent. They 

will be abused, tortured and perhaps never even accounted for. 

For more than half a century, the United States was a leader in 

opposing the use of torture and coercive methods of interrogation 

against those captured in conflict, as well as the deplorable practice 

of disappearing people. And we need to reclaim our reputation. 

It is often said that the war with the terrorists calls for new approaches melding traditional law enforcement procedures with the 

law of war. How we decide who will be detained and how we treat 

them in our custody provides a good example of this. 

Detainees are held pursuant to the law of war, but the term of 

their detention is so long and indeterminate that it has many of 

the characteristics of criminal punishment. The fact that each terrorist has made an individual choice to fight us, rather than being 

drafted by his government into the army, reinforces this criminal 

law perspective, which addresses itself to personal responsibility. 

Extending habeas review to determine the lawfulness of detaining the terrorist combatants, as has not been done in previous 

wars, seems to me to be an appropriate acknowledgment of the new 

situation that the conflict with the terrorists has created for us. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Taft follows:] 

PREPARED STATEMENT OF WILLIAM H. TAFT, IV 

Mr. Chairman and Members of the Committee: 

I am pleased to appear in response to your invitation to discuss legal issues related to the detention of persons captured in our conflict with al Qaeda and other 

terrorist organizations. My testimony will address two issues specifically—first, 

whether upon the filing of habeas corpus petitions courts should determine the lawfulness of detaining persons at Guantanamo Bay and, second, how those persons 

who are lawfully detained should be treated. 

Before the enactment of the Military Commissions Act last year, detainees in 

Guantanamo were entitled under the Supreme Court’s interpretation of the relevant 

authorities to have the lawfulness of their detention reviewed after filing petitions 

for habeas corpus. The benefits of this procedure were considerable, not so much for 

33 

the detainees—none of whom was released by a court—as for establishing beyond 

argument the legitimacy of holding persons who continued to present a threat to 

the United States as long as the terrorists continue to fight us. 

It should be recalled, in considering this question, that the Supreme Court has 

on two occasions affirmed the lawfulness of detaining persons captured in the conflict with al Qaeda and the Taliban as long as they pose a threat to the United 

States. This is black letter law of war. Currently, whether a person poses a threat 

to us is determined by the military with only very limited judicial review of the proceedings of the Combatant Status Review Tribunal involved. Having the determination made by a court following established habeas procedures would greatly enhance 

its credibility and be consistent with our legal tradition. 

Beyond that, providing habeas corpus review of the limited number of cases at 

Guantanamo will impose only a very modest burden on the courts. Fewer than four 

hundred people are currently detained at Guantanamo, and I understand that a 

substantial number of these may soon return to their own countries. By comparison, 

the courts handle many thousands of habeas petitions each year. Also, the cases are 

comparatively straightforward. Many detainees freely state that they would try to 

harm the United States if they are released. Others are known to be members of 

al Qaeda, have been captured while attacking our troops, or are otherwise known 

to pose a threat to us. In short, practically all of the detainees at Guantanamo are 

there for a good reason. Judicial review of such cases should be relatively uncomplicated when compared with the voluminous trial and appellate records involved in 

most habeas cases. In the event, however, that a court were to be presented with 

a case that raised serious questions about the lawfulness of detention, surely those 

questions should be carefully considered, and no institution is better equipped by 

experience to do that than a court. 

In proposing that we return to the system that was in place previously, I want 

to stress that I do not believe this issue should be treated as a constitutional one, 

but simply as a matter of policy. Whether Congress has the power to bar habeas 

review to aliens detained in Guantanamo is a question that will be resolved by the 

courts. My guess is that it probably does. But Congress should not want to bar the 

habeas review the Supreme Court found the aliens in Guantanamo were entitled 

to under our statutes. It should want, instead, to have the judiciary endorse the detention of the terrorists who threaten us. For the very reason that the law of war 

allows us to detain persons without charging them with criminal conduct for extended periods, it is all the more important to be sure that the process for determining who those people are is beyond reproach. Unlike wars between national armies, where it’s easy to tell who the enemy is, identifying those terrorists we are 

entitled to detain is more difficult. We should take advantage of the courts’ expertise 

in performing this task. 

Regarding the standard of treatment for detainees, I believe we should have followed our practice in previous wars of treating all captured persons in accordance 

with the Geneva Conventions and the Army Field Manual applying them, whether 

or not they were entitled to this. Any state, after all, can designate its enemies as 

‘‘unlawful combatants’’. In fact, North Vietnam and Iran have led the way in this 

practice in recent years, but we should not follow them. Our own servicemen, diplomats and ordinary citizens will pay the penalty. They will be abused, tortured and 

perhaps never even accounted for. For more than half a century, the United States 

was a leader in opposing the use of torture and coercive methods of interrogation 

against those captured in conflict. We need to reclaim our reputation. 

It is often said that the war with the terrorists calls for new approaches, melding 

traditional law enforcement procedures with the law of war. How we decide who will 

be detained and how we treat them in our custody provides a good example of this. 

Detainees are held pursuant to the law of war, but the term of their detention is 

so long and indeterminate that it has many of the characteristics of a criminal punishment. The fact that each terrorist has made an individual choice to fight us, rather than being conscripted by his government, reinforces this criminal law perspective, which addresses itself to personal responsibility. Extending habeas review to 

determine the lawfulness of detaining the terrorist combatants, as has not been 

done in previous wars, seems to me an appropriate acknowledgement of the new situation that the conflict with the terrorists has created for us. 

Mr. Chairman, thank you for this opportunity to appear before the subcommittee. 

This concludes my testimony. I look forward to answering your questions. 

Mr. NADLER. Thank you. 

I now recognize Mr. Berenson for 5 minutes. 

34 

TESTIMONY OF BRADFORD BERENSON, 

PARTNER, SIDLEY AUSTIN, LLP 

Mr. BERENSON. Thank you very much, Mr. Chairman, Ranking 

Member Franks, other Members of the Subcommittee. I appreciate 

the opportunity to address you this afternoon. 

As I listened to the Chairman and the Ranking Member’s opening statements, I thought that members of the audience could be 

forgiven for thinking that they were describing two different 

universes. 

In the Chairman’s view, the constitutional right to habeas corpus 

is absolutely fundamental to what we are talking about this afternoon, whereas in Congressman Franks’s view, the constitutional 

right to habeas corpus was essentially irrelevant to the debate. 

And I thought, ‘‘Well, how can we reconcile these competing 

views?’’ And, in fact, they are fully reconcilable. 

I agree with the vast majority of what you said, Mr. Chairman, 

about the importance of habeas corpus in our constitutional traditions. But I also agree, as Mr. Taft just indicated, that the constitutional right to habeas corpus is essentially irrelevant to the debate 

we are having today. 

How can this be? Well, let me lay out three quick legal principles 

that I think explain all of this and then describe what I think the 

implications of them are. 

First, alien enemy combatants outside of U.S. territory are not 

protected by the United States Constitution. As fundamental as habeas corpus rights are for our citizens or those who may be found 

on our territory, they have never been extended to those fighting 

against us who are outside our territory and have no meaningful 

connections to this Nation. 

The Constitution and its protections are a privilege afforded to 

those who have meaningful ties to our Nation, not to foreign enemies who seek to destroy it. 

The practical consequences of any other view would be absurd. 

As Congressman Franks pointed out, there is very little due process on a battlefield. Every time one of our soldiers pulls a trigger, 

drops a bomb, he takes extraordinary risks with the lives and the 

property of potentially innocent people, and does so with no advance warning and with no form of process. If the Constitution 

really applied on the battlefield, we simply could not fight. 

In recognition of this, case after case in the Supreme Court has 

made this crystal clear, most recently the Boumediene case in the 

D.C. Circuit, which Mr. Katsas argued. But that built on a long series of existing Supreme Court cases. 

But that does not mean that individuals whom we capture in this 

or any other war have no rights, or that they are in the often-described legal black hole at Guantanamo Bay. They do have rights. 

Those rights just don’t spring from our Constitution. They spring 

from the international law of armed conflict. 

Now, the second important principle is that the individuals we 

are talking about here—al-Qaida terrorists, Taliban irregulars and 

the like—fall into the lowest category of protection under the international laws of armed conflict. They are unlawful enemy combatants, which means that they do not bear arms openly, wear insigVerDate Aug 31 2005 12:37 Jan 21, 2009 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062607\36345.000 HJUD1 PsN: DOUGA
35 

nia recognizable at a distance, participate in the chain of command 

that can control them, and themselves obey the law of war. 

They are, in short, walking law of war violations themselves. 

And as a result, the laws of war afford them far less protection 

than they afford to honorable soldiers and far, far less protection 

than we ought to afford to our own citizens, even if they transgress 

our criminal laws. 

The people in this category have been described in precedents as 

hostis humanis generis—that is, enemies of all mankind—precisely 

because the way they fight is so dangerous to civilians, who are the 

ultimate object of the law of war’s solicitude. 

The third important principle: Habeas corpus rights for alien 

enemy combatants outside the United States are absolutely unknown in human history. No nation at war ever has afforded access 

to its domestic court system to people fighting against it militarily. 

No contrary authority has ever been cited in the Supreme Court or 

elsewhere that I am aware of. 

There are cases that extend habeas to enemy combatants, but 

those are on home soil. There are cases that extend habeas corpus 

in certain circumstances abroad, but those typically involve U.S. 

citizens or those under our protection. 

It is not the case that the President is exerting some radical new 

tyrannical power unknown in the history of the United States. In 

fact, every President prior to President Bush had exactly the same 

power to capture, detain and hold those who take up arms against 

this Nation. 

So what does that mean for today’s debate? Well, to summarize 

very briefly, the Military Commissions Act is the most generous set 

of procedural rights ever afforded in the history of warfare to individuals against whom we are fighting. We get no credit for it, but 

it is absolutely true. 

There are sound reasons for this, and I think Mr. Hafetz has accurately identified many of them in his testimony. But the Military 

Commissions Act represents a balance—— 

Mr. NADLER. Mr. Hafetz hasn’t testified yet. 

Mr. BERENSON. I have read his written testimony. [Laughter.] 

There are things about this conflict that justify some innovations 

and more generous procedures to those whom we capture. But the 

Military Commissions Act represents a sensible compromise balancing the rights and interests of those who we capture against the 

military exigencies that Greg Katsas described at the very beginning. 

At a bare minimum, I would urge the Committee to give the 

Military Commissions Act the opportunity to prove itself in practice, to show how it functions, to build a better legislative record 

before reconsidering any aspect of it. 

Thank you. 

[The prepared statement of Mr. Berenson follows:] 

36 

PREPARED STATEMENT OF BRADFORD A. BERENSON


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Mr. NADLER. Thank you. 

Now recognize Mr. Hafetz for 5 minutes. 

TESTIMONY OF JONATHAN HAFETZ, LITIGATION DIRECTOR 

OF THE LIBERTY AND NATIONAL SECURITY PROJECT, 

BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY 

SCHOOL OF LAW 

Mr. HAFETZ. Thank you, Chairman, thank you, Ranking Member 

Franks, and thank you to Members of the Subcommittee for inviting me to share my views at today’s hearing. 

The subject of today’s hearing cuts to the heart of America’s values and commitment to the rule of law. Since pre-Revolutionary 

American history, habeas corpus has been a cornerstone of our system, protecting individuals against unlawful exercises of state 

power. 

Habeas guarantees individuals seized and detained by the government the right to question the legal and factual basis for their 

detention. It has traditionally been available to citizens, noncitizens, slaves, alleged spies and alleged enemies alike. Our founders 

all regarded the writ as a bulwark of individual liberty and safeguarded its protections in the Constitution. 

I want to briefly address the question of the constitutional implications, because I do not agree that the Supreme Court’s decision 

in Rasul was only won regarding the habeas statute. The Supreme 

Court in its 6–3 decision made two important points: first, that executive imprisonment has been lawless since the Magna Carta; and 

second, that the common law writ of habeas corpus enshrined in 

the suspension clause of the Constitution would have extended to 

detainees at Guantanamo Bay. 

Now, habeas corpus provides two important—well, it provides 

several important protections, two of which I will highlight here. 

The others I have highlighted in my written testimony. 

First, it provides a guarantee that the government provide a 

legal basis for an individual’s detention. That serves a very important function: It ensures, as the Supreme Court said, that the detention of enemy combatants remains within the permissible 

bounds of the law. That is very important, because the Administration has asserted sweeping powers to detain individuals as enemy 

combatants, powers that would extend to people who, according to 

the Administration, donate money or services to an organization 

that, unbeknownst to them, is affiliated with a terrorist organization. It would allow people to be held for life based on innocent association. 

Second, habeas corpus provides meaningful review of the factual 

basis for a prisoner’s detention; in other words, to determine 

whether or not the individual is who the government claims the 

person to be. That serves a very important function at Guantanamo 

for several reasons, including because individuals were picked up 

at Guantanamo and not provided the underlying process that the 

military ordinarily provides during armed conflicts. Instead, many 

were handed over for bounty, for rewards, by individuals seeking 

rewards. In addition, the detentions are based on evidence gained 

by torture and other coercion. 

71 

Now, the other witnesses have talked a little bit about the military commissions procedures, but I want to focus on the other procedure, the procedure that really dominates Guantanamo, the combatant status review tribunal. 

Of the 750 individuals who have been detained at Guantanamo 

since September 11th, and of the approximately 375 who remain, 

only a handful have been charged and only a few will ever be 

charged. The rest are being held indefinitely, potentially for life, 

based upon executive say-so. 

The only process they have been given is that of a CSRT, the 

combatant status review tribunal, which was created deliberately 

to avoid habeas review. The CSRT is a summary proceeding that 

lacks all the hallmarks of due process: denying detainees attorneys, 

relying on secret evidence, preventing detainees from calling witnesses or presenting evidence, using evidence gained by torture 

and other abuse, and rubber-stamping detentions based on what 

higher-ups have said and political influence. 

In fact, a striking recent affidavit from Lieutenant Colonel Stephen Abraham, a 26-year veteran of military intelligence, details 

that CSRT decisions were based on generic information and that 

lacked the fundamental earmarks of objectively credible evidence. 

Every Federal judge that has examined the CSRT against the requirements of due process has found it lacking. According to District Judge Joyce Hens Green, the CSRT denies detainees a fair opportunity to challenge their incarcerations. 

Now, supporters of the MCA say affording Guantanamo detainees habeas rights would give America’s enemies unprecedented access to the courts, but that is inaccurate and misleading. Courts 

have reviewed the habeas petitions of foreign nationals detained by 

the United States during wartime, including Nazi saboteurs and a 

Japanese general accused of war crimes. 

But even more significantly, what the Administration calls a 

global war on terror is very different than prior wars. It has no 

identifiable enemies, no recognizable battlefields and no foreseeable 

end. It is precisely the indeterminate, open-ended nature of the 

fight against terrorism that increases the risk that government officials will inadvertently detain the wrong people based upon suspicion, innuendo or mistake. 

In other words, the very nature of what the Administration calls 

a global war on terror makes habeas corpus more, not less, important. 

But the issue is not merely about the detainees. It is also about 

America and what America stands for. As former Secretary of State 

Colin Powell explained, Guantanamo has become a major problem 

for how the world sees our country. It has shaken the belief that 

the world had in America’s justice system, and it has undermined 

the faith that is necessary to fight terrorism. 

The first step in regaining that faith is to restore habeas corpus. 

As Mr. Powell said, isn’t that what our system is all about? 

[The prepared statement of Mr. Hafetz follows:] 

72 

PREPARED STATEMENT OF JONATHAN HAFETZ


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Mr. NADLER. I thank you. 

I will begin the questioning by recognizing myself for 5 minutes. 

Mr. Berenson, you said that there is no habeas for enemy combatants abroad, obviously; that there is no new tyrannical power 

assumed by the President. 

The President claims the power, for example, in the Padilla case, 

to seize someone in the United States, someone who we don’t know 

to be an enemy combatant—there may be information to that effect, but someone, anyone basically, anyone who isn’t a citizen—my 

grandmother before she became a citizen—and throw them in a 

military brig forever. 

How is that not a new tyrannical power? 

Mr. BERENSON. I think that is a misunderstanding of the power 

that the President claimed with respect to Mr. Padilla. 

I was working in the White House at the time that Padilla was 

first captured, and the United States never took the position that 

Mr. Padilla did not have right of access to U.S. courts and did not 

have the ability to file a writ of habeas corpus. 

He in fact did those things, and the Administration never took 

the view that the courts were without jurisdiction to entertain his 

claims. 

Mr. NADLER. I thought that was exactly the position of the Administration. 

Mr. BERENSON. No, the dispute was really over what that habeas 

court could do. The Administration took a very restrictive view of 

the right mode of judicial review for the habeas court; that is, it 

was extremely deferential review, which essentially amounted to a 

review of the record on which the Administration had based its 

conclusion that Padilla was a combatant. The Administration did 

not want trial-type adversary proceedings, with lawyers on both 

sides duking it out—— 

Mr. NADLER. But on what basis—if I am accused of murder and 

I am picked up on the streets of New York—or genocide or anything else—I get full normal rights to contest that. But if I am accused of being an enemy combatant, I don’t get full rights. 

How can the characterization of the accusation deprive me of the 

rights? 

Mr. BERENSON. Because it is a fundamentally different thing to 

take up arms against this Nation—— 

Mr. NADLER. Excuse me. No one knows I took up arms. Someone 

has accused me of taking up arms. How can the characterization 

of the accusation, not the facts, which haven’t yet been determined, 

but the characterization that I took up arms against the United 

States, allegedly, as opposed to murdering people, the first 10 people who walk down the street, why is that a difference? 

Mr. BERENSON. During World War II, we detained, on our soil, 

hundreds of thousands of people who were suspected of being Japanese or German soldiers. 

Mr. NADLER. And no one today thinks that was good law. 

Mr. BERENSON. Many of them—— [Laughter.] 

No, I am not talking about the internment of Japanese citizens. 

Mr. NADLER. Then what are you talking about? 

Mr. BERENSON. I am talking about prisoner of war camps. 

Mr. NADLER. Oh, okay. 

95 

Mr. BERENSON. We held prisoners of war, here, from the Axis 

powers. And many of them claimed that they were not in fact enemies of the United States. They claimed that they were in forced 

labor battalions, that they had essentially been enslaved by the 

Nazis, that they bore us no enmity—— 

Mr. NADLER. But in those cases, they had been captured. I am 

not arguing with someone who was captured on a battlefield in Afghanistan, which would be the analogous case. They were in fact 

captured in circumstances that gave weight to the belief that, in 

fact, they were not simply criminal defendants charged with waging war against the United States. They were captured in combat 

abroad and they may have said, ‘‘I was here under duress,’’ or 

whatever. 

Mr. Padilla or anybody else in the United States is not in that 

situation. He is analogous. Other people are analogous to someone 

who is simply—they are captured the way any criminal defendant 

would be captured. 

And the position you are taking is that, because they are accused 

of being an enemy combatant, they should have fewer rights than 

someone accused of different crimes but even more serious crimes. 

Mr. BERENSON. Well, the evidence on which the President certified that Mr. Padilla was an enemy combatant included very good 

intelligence about his meetings with Osama bin Laden—— 

Mr. NADLER. It may or may not be wonderful intelligence. It may 

or may not be true. That is not the question. 

Mr. BERENSON. And a court was going to review that and determine its adequacy. 

I accept your point that the risk of error in the detentions in this 

war is higher than in a conventional—— 

Mr. NADLER. That was not my point. That was a different point. 

Mr. Hafetz made that point. I agree with it, but that is not the 

point. 

My point is that the procedure of someone picked up in the 

United States cannot differ simply because he is accused of being 

an enemy combatant, as opposed—once he is determined to be an 

enemy combatant, what you do may differ; what rights he has then 

may differ. 

But I don’t know how you can pick up someone in New York and 

say that his rights are different or less because he is accused of 

being an enemy combatant, based on whatever information, as opposed to he is accused of being a murderer. 

Let me go on to a different question now. 

Mr. BERENSON. With your indulgence, may I make one point? 

Mr. NADLER. Okay. 

Mr. BERENSON. On that view, we need to be clear about what 

that means. It means that, if we had captured Mohammed Atta on 

September 10th, we would have had no choice but to treat him as 

a criminal defendant, which would have meant—— 

Mr. NADLER. Exactly right. 

Mr. BERENSON [continuing]. No interrogation, no intelligence, 

and the World Trade Center coming down. 

Mr. NADLER. That is exactly right. And when we captured mass 

murderers in the United States, we did the same, when we captured Charles Manson or other mass murderers. 

96 

But let me go on to another point, which I also don’t understand. 

If someone is in Guantanamo, or for that matter someone is accused of being an enemy combatant, he gets a CSRT as a matter 

of policy, but the law does not require that. 

Mr. BERENSON. Well, the Military Commissions Act specifically 

refers to the CSRTs. So, although the statute doesn’t direct that 

they—— 

Mr. NADLER. But there is no legal compulsion, because the 

Speedy Trial Act is specifically waived in the Commission Act. He 

could be held forever, without any—and since there is no habeas 

corpus and there is no ability to go into court, under any reason 

except to appeal from a final determination of a CSRT or military 

tribunal, we can in fact hold people there forever without any kind 

of review, can we not? 

Mr. BERENSON. I don’t agree with that. The CSRTs perform a 

status review, which is much more robust—— 

Mr. NADLER. Excuse me. No, no. But there is no legal requirement that there be a CSRT. 

Mr. BERENSON. But the Administration has made clear that in 

every single case there will be a CSRT, and there has been. 

Mr. NADLER. But the Administration saying that, as a matter of 

policy, it will do so is not the same as saying, as a matter of law, 

it must do so. 

Mr. BERENSON. I would be surprised if the Administration objected to having it written into the law that there have to be 

CSRTs. I mean, they are committed to providing—— 

Mr. NADLER. The gentleman will suspend. 

There will be no demonstrations from the audience, please. 

Mr. BERENSON. The Administration has committed that every 

person held and detained at Guantanamo is going to receive a 

CSRT, followed by judicial review in the D.C. Circuit. 

Mr. NADLER. Thank you. 

The time of the Chairman has expired. I now recognize the 

Ranking minority Member, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

I missed the excitement a moment ago. I thought he was upset 

at Mr. Berenson. [Laughter.] 

You have done an outstanding job, Mr. Berenson. I have not 

heard more compelling testimony before this Committee. 

Mr. Chairman, in sincere respect toward you, one of the comments I made in my opening statement was that the jihadist ideology is one of the most dangerous ideologies that this country has 

ever faced. And you said that you thought that the Nazi ideology 

was. 

I would say to you that there is great agreement that the Nazi 

ideology and the jihadist ideology, both of which have no respect 

for innocent human life and have damaged humanity with scars 

that will never heal—I believe they belong in the same category. 

I mean, a Nazi ideology that did what they did is impossible to 

really relate to. It is also true that the jihadist ideology that beheads little girls because they want to attend a faith-based school 

is a pretty hellish ideology, given their statements to wipe out humanity. 

97 

With that said, what if we had granted habeas corpus to Nazi 

war criminals in Nazi jails? I am afraid that all of us on this Committee, if it existed—and it wouldn’t—would be speaking German. 

It certainly would have prevented us, in my judgment, from prevailing in that hellish conflict. 

With that said, I think there is a lot of distortion about how we 

treat the detainees in Guantanamo Bay. Just to suggest to you 

some of the things that we do there, first of all, we fly in special 

meals to the detainees in Guantanamo Bay to meet their faithbased dietary requirements. That food is better than what we feed 

our own soldiers on the battlefield. 

We give five times a day a time for prayer so that they can do 

this, which is called over a taxpayer-funded address system. We 

have arrows pointed toward Mecca painted on the floors so that 

they can pray toward Mecca. We have a taxpayer-funded Koran so 

that they can follow their own religious practices. 

We do everything in the world to try to uphold American sensibilities in this tragic situation, but that does not change the reality that we are facing terrorists that are indeed enemies of humanity. 

And I wonder, if we indeed granted habeas corpus to some of the 

Guantanamo Bay detainees, do the proponents believe that there 

is a terrorist code of honor that would prevent them all from saying, ‘‘I didn’t mean to do that; I wasn’t really trying to fight anybody’’? It is astonishing to me that we would suggest such a thing. 

So, Mr. Berenson, if I could, with the time I have remaining— 

let me skip over to Mr. Taft first. 

In the Johnson v. Eisentrager case, the Supreme Court said the 

following regarding the argument that the Constitution was meant 

to extend its protections to foreign enemies: ‘‘Not one word can be 

cited, and no decision of this court supports such a view. None of 

the learned commentators of our Constitution has ever hinted at it. 

The practice of every modern government is opposed to it.’’ 

Can you cite something to support the proposition that the Constitution extends its protections to foreign enemies that the Supreme Court missed in that case? 

Mr. TAFT. Well, Mr. Franks, thank you. 

No, actually, I was on the—— 

Mr. FRANKS. Can you pull up to the mike, please? 

Mr. TAFT. Yes, sorry. 

Actually, I believe I was one of the people who signed the brief 

that the government submitted in the Rasul case, which cited 

Eisentrager favorably. And I thought Eisentrager was good law at 

that time. 

I will say, obviously, the Supreme Court decided that, in fact, 

under the statutes—not under the Constitution, but under the existing statutory law—that the right to file petitions for habeas corpus did extend to the people in Guantanamo. 

They are a very special case. They really are. That is why I think 

I would make an exception for them. I would not extend it to the 

battlefield. I would not take it to Afghanistan or overseas. 

But I think Justice Kennedy described fairly well the peculiar 

situation in Guantanamo which makes it not dangerous at all, I 

think, to provide habeas and does give us that extra edge of makVerDate Aug 31 2005 12:37 Jan 21, 2009 Jkt 000000 PO 00000 Frm 00101 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062607\36345.000 HJUD1 PsN: DOUGA
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ing these decisions wisely and correctly, which will give legitimacy 

to our detention of those people there. 

Mr. FRANKS. Thank you, sir. 

Mr. Berenson, you know, the court went on to explain that if the 

Constitution conferred rights to foreign enemy combatants, that 

‘‘enemy elements could require the American judiciary to assure 

them freedoms to speech, press and assembly as in the First 

Amendment; the right to bear arms, as in the Second Amendment; 

security against unreasonable searches and seizures, as in the 

Fourth; as well as rights to a trial by jury in the Fifth and Sixth 

Amendments.’’ 

How do you think that this would affect a wartime situation? 

And if you would take any opportunity to expand any other 

issues that you think are important. 

Mr. BERENSON. Well, as I indicated before, I think taking seriously the notion that our Constitution extends its protection to our 

military foes abroad would literally render warfare impossible. 

In addition to all the things that Justice Jackson cited in the 

Eisentrager opinion, consider this: We would have to afford just 

compensation for any property of theirs we destroyed in bombing 

them. It really is absurd and unthinkable that the Constitution extends its protections to our enemies in arms. The Constitution was 

meant to restrain the power of our government as relates to our 

citizens and what happens in our Nation. It was meant to strengthen our government and strengthen our government’s hand, with 

the recent experience of the Revolution and the Articles of Confederation in mind, when we direct our power outward at external 

foes. 

Mr. NADLER. The time of the gentleman has expired. 

Let me just comment that I think the Constitution was meant to 

extend, not just to our citizens but to persons in the United States, 

various protections. 

I will now recognize the distinguished Chairman of the full Committee, the gentleman from Michigan, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. I commend you for 

these hearings. I am very happy to hear the witnesses’ testimony. 

I would like unanimous consent to put my statement in the 

record. 

Mr. NADLER. Without objection. 

[The prepared statement of Mr. Conyers follows:] 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND

CIVIL LIBERTIES

The writ of habeas corpus is a legal protection having its origins in the Magna 

Carta. For almost 800 years, it has stood as a fundamental institutional safeguard 

of constitutional rights and civil liberties, giving prisoners the right to challenge 

their detention before neutral decision-makers. In America today, this writ continues to act as an important check on executive power, helping ensure that our Nation’s criminal justice system adheres to the fundamental guarantees of the Constitution. 

The importance of habeas corpus is particularly critical in Guantanamo Bay, 

where many detainees are being held indefinitely—without charge, and without any 

opportunity to challenge their detention at trial. In 2004, the United States Supreme Court in the case of Rasul v. Bush upheld the jurisdiction of federal courts 

99 

to hear habeas petitions filed by Guantanamo detainees to challenge the lawfulness 

of their indefinite detentions. 

In response, the Administration established the Combatant Status Review Tribunals as an alleged substitute for habeas corpus review. And Congress passed two 

bills—the Military Commissions Act and the Detainee Treatment Act of 2005—dealing a further blow to the rights of Guantanamo detainees. The result is a due process quagmire. 

Let me just highlight a few of these problems. First, the Tribunals have proven 

to be wholly inadequate, because they lack the basic hallmarks of due process. For 

example: 

• A detainee must prove himself innocent of allegations that he has no right 

to be informed of. 

• A detainee has no right to counsel in the hearings before the Tribunal. 

• A detainee has no right to present witnesses or evidence in his own defense. 

• The Tribunals allow the use of evidence obtained through coercion and even 

torture. 

Second, the Military Commissions Act eliminated habeas corpus for non-citizens 

held by the United States as ‘‘enemy combatants.’’ Indeed, a detainee does not even 

have to be found to be an enemy combatant—it is enough for the Government to 

assert that the detainee is ‘‘awaiting’’ determination of that status. 

Third, while enemy combatants may seek review of their status in the United 

States Court of Appeals for the District of Columbia Circuit, the Acts confine that 

review to the record of facts already created by the Tribunal, a process that is inherently unsatisfactory. Even more recently, the Administration has sought to limit the 

ability of detainee attorneys to provide even the most basic representation to their 

clients. 

Although it is necessary for our government to have the power to detain foreign 

terrorists to protect national security, repealing federal court jurisdiction over Guantanamo detainee habeas corpus petitions does not advance that goal. It is critical 

that we maintain habeas corpus to ensure not only that we are detaining the right 

people, but that we are complying with the rule of law. 

Restoring habeas corpus is also crucial to upholding our Nation’s reputation 

abroad. The United States will not be able to expect other nations to afford our citizens the guarantees provided by habeas corpus unless we provide those assurances 

to others. 

Our detention policy, both in law and practice, has damaged our reputation in the 

international community and undermined support for our ongoing war on terrorism. 

Indeed, the United States should demonstrate that while our Nation is tough on terrorism, it remains no less committed to fundamental human rights. 

Mr. CONYERS. Now, what I would like to do with my time is engage a discussion between Mr. Hafetz and Lieutenant Commander 

Swift over the comments of Mr. William Taft, who suggests habeas 

as a matter of policy—well, here is his statement: ‘‘In proposing 

that we return to the system that was in place previously, I want 

to stress that I do not believe this issue should be treated as a constitutional one.’’ 

Let me begin with you, Mr. Hafetz. Can we find any agreement 

between the three of you in that regard, of the statement of Mr. 

Taft that I have just recited? 

Mr. HAFETZ. Well, I certainly concur with Mr. Taft’s statement 

that, as a matter of policy, the United States should or Congress 

should restore habeas corpus for Guantanamo detainees, regardless 

of what the courts do. It is a matter of sound policy. 

Guantanamo is a failure. It is widely recognized as a failure, including by many within the Administration. And a principal reason 

is that the United States has denied habeas corpus to Guantanamo 

detainees; it has prevented any lawful or meaningful process to determine whether we are detaining people in accordance with law. 

However, I also do think that, as a matter of constitutional law, 

Guantanamo detainees do have a right to habeas corpus. 

100 

And I would just point out in response to Mr. Franks’s point 

about Eisentrager one other thing in the Rasul opinion—and this 

is from Justice Kennedy’s concurring opinion—that Guantanamo in 

all practical respects is a U.S. territory, given the long-term exclusive control the United States exercises there, which is another 

reason that makes a constitutional difference. 

Mr. CONYERS. Thank you. 

Commander Swift? 

Commander SWIFT. Yes, sir. I fully agree with Mr. Taft in several respects, in that this war, A, is unprecedented; B, that normally speaking in a conflict between nation-states, there is no constitutional protections, nor would habeas extend to that battlefield. 

No one here thinks it does. 

Mr. CONYERS. I don’t think so either. 

Commander SWIFT. Guantanamo Bay is unique in that it is 

somewhat more like a territory. 

And this conflict is unique, as Mr. Taft pointed out, in that when 

we throw around the word ‘‘unlawful combatant,’’ what we should 

say is ‘‘criminal.’’ That is what we are saying. Under the rubric of 

war, you are saying it is criminal. 

Now, the question is whether, as the Chairman would have it, 

they be accused criminals and let’s have a trial, or, as maybe Mr. 

Franks would have it, they are convicted criminals and there is no 

need for a trial. 

I think that the good policy in a war where we will call our adversaries criminals is to make sure that the process comports with 

that that we would expect from enemy criminal defendant, and 

that that is the best way to go forward. 

So I agree completely with Mr. Taft that the smart way to do 

this is to make sure that whether we are using the military justice 

system or the civil justice system, that we have the complete protections, including the Federal courts. 

I personally believe that the Supreme Court is likely to extend 

it if Congress does not, but, as I have testified, why wait? We get 

black eyes and bloody noses every day we don’t. So I think it is 

only prudent that Congress intervene now and move the process 

along. 

As Colin Powell pointed out, nobody is leaving. We are just getting back to the basics of justice. 

Mr. CONYERS. Mr. Taft, you get the last word on this. 

Mr. TAFT. Well, I am not sure where to go from here except to 

say I do agree with myself—— [Laughter.] 

Mr. CONYERS. You have a fair degree of agreement between 

Hafetz and Swift. 

Mr. TAFT. I do disagree with Mr. Hafetz on the constitutional 

point, but for me it is a small point because I think the Congress 

should do this by statute. 

Mr. CONYERS. Thank you very much. 

Mr. NADLER. The gentleman’s time has expired. 

I now recognize Mr. Jordan for 5 minutes. 

Mr. JORDAN. Thank you, Mr. Chairman. 

Let me go to Mr. Berenson, back to the hypothetical you raised 

when the Chairman was questioning you. You talked about SepVerDate Aug 31 2005 12:37 Jan 21, 2009 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062607\36345.000 HJUD1 PsN: DOUGA
101 

tember 10th, if Mr. Atta, a non-citizen, would have been apprehended. 

I believe the Chairman’s remark was he should be treated no different, even if you knew, had intelligence that told you what was 

going to happen the very next day, he should be treated no different than a citizen who was alleged to have committed some 

crime. 

Can you comment on that exchange? It didn’t really get to take 

place with you and the Chairman, but I would like your comments. 

Mr. BERENSON. Yes. I think that there is no doubt that when the 

enemy disguises himself as a civilian, as our adversaries routinely 

do, they create big problems for us, legally and morally. The risk 

of error in detention goes up. 

But it doesn’t mean that we abandon the law-of-war model entirely. These are absolutely military adversaries. On September the 

11th, they attacked the center of our financial power, the center of 

our military power, and tried to attack this building, the center of 

our political power. 

There is no question that these are not ordinary criminals. 

NATO invoked article V for the first time in its history. We had 

combat air patrols flying over our cities. 

There is very little doubt that that was an act of war. It was regarded by us as such, by the President and the Congress, by the 

world as such. And there is no reason to jettison the law-of-war 

model entirely. 

All we really need to do is what Congress has already done, 

which is modify it to take account of some of the unique aspects 

of this conflict in the Military Commissions Act. 

And the Mohammed Atta example I gave illustrates the dangers 

of just thinking it is an either/or choice and that really what we 

ought to do is gravitate back to a criminal law model. You cannot 

afford to. You could have saved 3,000 lives and all the distress that 

those families have endured if you could have interrogated him 

rather than given him a lawyer and a quarter to call his confederates. 

Mr. JORDAN. And maybe you have not seen, maybe you have, 

today on the front page of the Washington Times, the lead story, 

the 6-year-old who was recruited by the Taliban, that they told this 

young boy, ‘‘Put on the vest, and when you hit the button it is 

going to spray the flowers and water the plants and the flowers.’’ 

And this kid, sharp kid, 6 years old, but street-smart kid, had figured out what was going on, went to the authorities. And that is 

the mindset that we are up against. 

Take me back—and I only caught part of the testimony here. I 

heard Mr. Hafetz when I walked in. And I apologize for that. But 

what kind of due process in fact—I mean, Mr. Hafetz seemed to allude that they had no due process, that the 750 and the 300 who 

still remain at Guantanamo. 

Tell me about the CSRT and what exactly due process that entails. 

Mr. BERENSON. The critical thing with looking at the CSRTs is 

the same thing as in this debate overall. You have to identify the 

appropriate baseline against which to measure it. 

102 

The appropriate baseline under the law of war for people who are 

detained and whose status is unclear, who maintain that they are 

not enemy combatants, comes from the Geneva Conventions, article 

V. 

Compared to an article V hearing, a CSRT is much, much more 

protective of the rights of the accused. Article V hearings tend to 

be 2, 3, 4 minutes long in a field tent with a few harried officers. 

They do not get personal representatives the way the Guantanamo 

detainees do. There is no right to get exculpatory evidence in the 

hands of the government the way the Guantanamo detainees have. 

There are a variety of rights that Mr. Katsas described at the 

very beginning afforded to people in the CSRTs that go well beyond 

what we would afford even to honorable, law-abiding enemy soldiers of a foreign country. 

Now, that is not to say that this affords all the protections available in the civilian criminal justice system. I understand why Lieutenant Commander Swift and Mr. Hafetz want to have more rights 

and more protections, but that is not the right measure. 

Mr. JORDAN. I understand. I appreciate it. 

And I am running out of time here. Let me go to one of the folks 

on the other side. 

Go back to the hypothetical that Mr. Berenson raised about Mr. 

Atta on September 10th and tell me why you think, as Mr. 

Berenson described it, that is not appropriate. 

Mister—— 

Commander SWIFT. I will address it, sir. 

If he were tried, as I have advocated, under the Uniform Code 

of Military Justice, nothing changes. 

You see, if we just use the process we have in the war model, 

the Military Court of Appeals have held that someone can be interrogated for operational reasons without reading them Miranda. In 

fact, a Marine Corps private was so held. The difference, of course, 

is what we can’t do going underneath it. 

No court in the recognized world—and I don’t believe we should 

start now—would allow us to use extreme duress on such a person 

or force them to confess or testify by being waterboarded or in extreme isolation or any of the above and put that testimony in. 

Whether we can or can’t do that in interrogation is a subject of 

a different hearing, but it is not going before a court. 

Mr. JORDAN. I appreciate that. So let me be clear: You disagree 

with what the Chairman’s characterization of how he would handle 

that same hypothetical. 

Commander SWIFT. In the context of the law of war. 

Now, on September 10th, we didn’t know we were at war. But 

if on September 11th, you know you are at war and you use the 

Uniform Code of Military Justice, which I have always argued is 

appropriate for war crimes, you don’t have a problem with an operational interrogation. 

Now, again, that interrogation must comply with the law of war. 

It can’t be the extreme interrogations that have been pushed forward and could be admitted in a commission. 

Mr. NADLER. The gentleman’s time has expired. 

The gentleman from Minnesota, Mr. Ellison, is recognized for 5 

minutes. 

103 

Mr. ELLISON. Thank you, Mr. Chairman. I would also like to 

thank you for these hearings. 

Mr. Berenson, my first question is for you. Going back to this 

Mohammed Atta example, of course if he would have been arrested 

on September 10th he would have been in the United States, according to your hypothetical. What due process, in your opinion, do 

you think he should be entitled to? 

Mr. BERENSON. I think the system that currently exists today, 

which is the Military Commissions Act of 2006, the CSRT system 

and the like, had it been in place on September the 10th would 

have represented a good balance between Mr. Atta’s interests in 

being treated fairly and having some procedural options for disputing that he is in fact an enemy combatant and the United 

States’s interests in protecting itself and effectively prosecuting a 

war. 

Mr. ELLISON. So you do agree that he should be afforded some 

due process, even Mohammed Atta the day before 9/11? I mean, it 

sounds like you are saying, ‘‘Yes, there should be a process even 

for a person like that.’’ 

Mr. BERENSON. Absolutely. He should—yes. He should receive a 

status review if he disputes his status. And if we want to charge 

him with war crimes, he should be tried in a military commission. 

Mr. ELLISON. Mr. Hafetz, let me ask you this question. Today, 

you know, the title of this hearing is the ‘‘Habeas Corpus and Detentions at Guantanamo Bay’’ hearing. There has been some testimony so far about what should or shouldn’t happen on a battlefield. But there is a fairly important distinction to be made between the location of the detainees at Guantanamo Bay and in the 

battlefield, don’t you agree? 

Mr. HAFETZ. Well, certainly, there is a difference between individuals who are being detained on a battlefield and individuals 

who are being detained at Guantanamo thousands of miles from a 

battlefield. 

And as I note in my written testimony, if you look at the reason 

people were brought to Guantanamo, it was pretty simple. According to a 2001 memorandum from the Department of Justice, which 

was leaked to the press in 2004, individuals were brought to Guantanamo deliberately to try to avoid habeas corpus review. And the 

memorandum noted that if a court were to review those detentions, 

they would find them illegal. 

Mr. ELLISON. Lieutenant Commander Swift, I know you are a 

lawyer, but you are a soldier. 

Commander SWIFT. Yes, sir. 

Mr. ELLISON. What national security dangers are presented by 

offering habeas corpus to detainees at Guantanamo? Are we running any risks if we do that? 

Commander SWIFT. I don’t believe we are. 

I believe that we put our trust into a Federal court that—the federally appointed constitutional officers are capable of safeguarding 

our national security. I don’t think the Senate would have confirmed them if they didn’t believe they were. 

And we have to trust someone in this, otherwise we come to the 

position where we trust no one except but the President, and that 

is not our democracy. 

104 

I actually think the failure to give habeas actually increases our 

national security. 

Mr. ELLISON. Could you elaborate on that, please? 

Commander SWIFT. Certainly. In this type of a war, the other 

side doesn’t have to win a battle. They don’t have to win a skirmish. They don’t have to win a single day. All they have to do is 

keep fighting, and we haven’t won. 

How do they do that? They recruit. And Guantanamo Bay is the 

Uncle Sam recruiting poster for Jihad, Incorporated, period. And 

for every one we hold, they recruit hundreds. 

It is no way to win a war. We need to stop them from recruiting, 

not help them. 

Mr. ELLISON. Reclaiming my time, Commander Swift, could you, 

as well as you can—and I know you may not be prepared for this 

question because it is, sort of, outside of the area that we are here 

about. 

Could you try to describe, as best you can for our panel, the argument that—and I am not going to us the term ‘‘jihadist,’’ because 

I don’t think it is a useful way to describe what we are talking 

about, but let’s just talk about the terrorists. 

Could you describe what pitch they make to people who are vulnerable to recruitment? What are they saying? 

Commander SWIFT. They say that the United States hates Islam, 

that the United States hates Arabs, that the United States is racist 

and that all of its policies are geared against Arabs and against 

Islam, that we have no values. 

And they demonstrate that by arguing, ‘‘See, in Guantanamo 

Bay, Arabs are treated different, they get second class. And in fact, 

citizens of England or Australia get special deals because they are 

America’s allies. But make no bones about it, in the Middle East 

we get a different deal.’’ 

Mr. ELLISON. Now, Commander, there are about 1.5 billion Muslims in the world. 

Commander SWIFT. That is correct, sir. 

Mr. ELLISON. And all of them want to see—I mean, they are 

Muslims, so they are in favor of Islam, right? And so, don’t we undermine our ability to protect the United States by allowing terrorists to make this global sales pitch to the entire Muslim world? 

Commander SWIFT. Absolutely, sir. And with just a little indulgence, I think the story that happened when I was in Yemen demonstrates it completely. 

On the last night that I was in Yemen, I was meeting with my 

client’s family. The grandmother of that household brought together all the little girls of the household, and she pointed to my 

female colleague, and this is what she said, sirs. She said, ‘‘Look 

at her. She went to school. She studied very, very hard. And now 

she is a lawyer.’’ And then she looked into their faces and said, ‘‘If 

you go to school and study very, very hard, you can be anything.’’ 

Now, that woman is obviously Osama bin Laden’s worst nightmare. She is victory. She is exactly what it looks like. But she is 

counting on the rule of law for that to come true. And how we treat 

her son-in-law determines whether those daughters are on our side 

or against us. 

Mr. ELLISON. Thank you. 

105 

Mr. NADLER. The time of the gentleman has expired. 

The gentleman from North Carolina is recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. And thank you for convening this important hearing. 

I have the unfortunate and unenviable problem today of having 

to be in three places at one time, with three very important hearings going on. The other two locations are full, just like this audience. 

So I want to first apologize to the members of this panel for having to miss your testimony, because testimony was going on in 

those other hearings at the same time and I had to make a choice. 

That happens sometimes, but seldom you are put in the position 

of not being able to figure out where your highest priority is. And 

this was a difficult day because this is so basic to us that it takes 

precedence even over other important hearings that we are involved in. 

Because I haven’t been in the flow, like the Chair, I am going 

to try to save time to yield to the Chair to ask additional questions. 

But I just want to say that I guess the real question I have heard 

here on the panel is between whether these are ordinary criminals 

or so-called enemy combatants. And my concern is that, while I 

guess I know an enemy combatant by profile at some level, I am 

not sure I trust anybody to make a dictatorial decision about what 

the characteristics of that person are. 

And I guess the most difficult question—even if your client, Mr. 

Hafetz, turns out to be an enemy combatant—is how one could be 

basically in a courtroom on a credit card matter in 2003 and then 

all of a sudden be in a military brig simply because the President 

of the United States said, ‘‘You are not a credit card common thief; 

you are an enemy combatant,’’ and then to have your client 

charged—really no charge brought against your client and he be 

held for 4 years without a charge against him and without any indication of when the detention would end, including 16 months 

when he was held incommunicado. 

That strikes me as a country that I don’t want to be associated 

with. Even if somebody determines that your client is an enemy 

combatant at some point, I don’t think one person ought to be able 

to do that. 

So I guess, in my own mind, this is just un-American for one person to be able to do that. And there at least ought to be, as Lieutenant Commander Swift has indicated, somebody other than a 

President who has assumed dictatorial powers making that kind of 

determination—a court system, a legal process, that would make 

that determination. 

I see you are chomping at the bit to respond to my general comment, even though I haven’t asked a question. So I will give you 

that opportunity, and then I am going to yield the balance of my 

time to the Chairman. 

Mr. HAFETZ. Thank you, Mr. Watt. 

Absolutely right, absolutely un-American. 

And there is a name for individuals in the United States who are 

accused of plotting terrorism or planning bad acts. They are accused criminals. In the United States, we give accused criminals 

106 

trials. If they are convicted, they are punished. They go to jail for 

a very long time. 

And actually one of the ironies of what has happened with the 

Administration’s policies is to prevent this from happening: It 

failed to try a number of people when it has gone to this enemy 

combatant definition. 

But actually every day the Department of Justice charges, tries 

and convicts individuals in the United States who are accused of 

terrorist acts. They did it before September 11, and they have done 

it after September 11. That is the American system. 

And to shed some light on why my client, in this case Ali alMarri, was declared an enemy combatant, we can look at statements of John Ashcroft, the former attorney general of the United 

States. 

Mr. al-Marri, when he was accused of a crime, asserted his innocence and asked for a trial. If the government had evidence; it 

could have gone forward and convicted him. 

But what Mr. Ashcroft said was, ‘‘Well, he refused to plead 

guilty, and we wanted to put the squeeze on him. So we locked him 

up for 16 months, denied him a lawyer, denied him any contact 

with the outside world, held him totally incommunicado and subjected him to horrific, cruel, inhuman and degrading treatment.’’ 

That is simply un-American, and as the Court of Appeals has 

ruled, allowing this kind of policy to happen in America would have 

disastrous consequences for our Constitution. 

Mr. WATT. Mr. Chairman, I apologize to you. I told you I was 

going to yield you some time, but—— 

Mr. NADLER. I thank the gentleman, but his time has expired. 

But we will begin a second round of questioning. 

And let me ask Mr. Swift, Mr. Berenson said that the CSRTs afford accused enemy combatants more rights than Geneva article V 

would require. Why is that not true? And why is it that CSRTs do 

not provide at least basic fundamental fairness? 

Commander SWIFT. Three reasons, sir. 

The first one is, how do you know when your CSRT is over? 

When you are declared a combatant, that is how you know. Don’t 

like that decision? Send it back down, get new evidence. Still find 

the person not to be a combatant? Send it back down, more new 

evidence. Under article V, one time. 

Mr. NADLER. So a finding of innocent means they simply can do 

it over again. 

Commander SWIFT. Absolutely. 

Number two in the CSRT proceedings that don’t comply with article V is, the definition of combatants has been radically changed. 

Under the CSRT definition, the little old lady in Switzerland who 

gave some financial support, as was explained to Joyce Hens 

Green, to a charity is now a combatant. 

By changing the meaningful distinctions that was in an article 

V tribunal on what actually constituted combatancy, one spread 

the net so wide as to catch anyone. 

Mr. NADLER. So that is wider than would be contemplated by article V? 

Commander SWIFT. Yes. 

107 

Number three is the use or consideration of evidence that would 

have been obtained in violation of the conventions themselves. 

Again, evidence would not be considered in an article V tribunal 

that had been obtained by force or coercion. 

Mr. NADLER. Any other reasons? 

Commander SWIFT. Well, those are the three off the top of the 

head. 

Mr. NADLER. Okay. Thank you. 

What was referred to a moment ago by Mr. Hafetz, holding someone incommunicado for 16 months under harsh conditions, is that 

contemplated by article V? 

Commander SWIFT. Well, in the article V tribunal, not directly. 

Under the Geneva Conventions, absolutely, 30 days, maximum—— 

Mr. NADLER. Under the Geneva Conventions, that is okay? 

Commander SWIFT. No. Under the Geneva Conventions, first you 

must register someone with the International Committee for the 

Red Cross, give an opportunity to visit. Second, solitary confinement cannot exceed 30 days. Access to sunlight, et cetera, must 

be—— 

Mr. NADLER. Are these requirements met at Guantanamo? 

Commander SWIFT. They were for a period of time. They are not 

currently, unfortunately. 

Mr. NADLER. Okay. 

Commander SWIFT. They were met inside the Camp 4, which was 

a large-scale holding which—— 

Mr. NADLER. But they are not currently. 

Commander SWIFT. Not currently. 

Mr. NADLER. Thank you. 

Let me ask you a different question. If someone is at Guantanamo and he is put before a CSRT, and the CSRT says, ‘‘You are 

not an enemy combatant and you are not a danger to the United 

States′′—we are holding 75 such people anyway, right? 

Commander SWIFT. I don’t have the exact numbers, currently. 

Mr. NADLER. I don’t care about the exact number. We are holding 

people anyway. 

Commander SWIFT. Yes. 

Mr. NADLER. In other words, a finding of, ‘‘You are not an enemy 

combatant, you are innocent,’’ by the CSRT doesn’t guarantee your 

release? 

Commander SWIFT. That is correct. 

Mr. NADLER. Under what authority do we hold people if they 

have been found not guilty? 

Commander SWIFT. I think that you do misuse a term there, sir. 

They haven’t been found not guilty. They have been found not to 

be a combatant. 

Mr. NADLER. Why are they being held? 

Commander SWIFT. The difficulty is, in our spiriting these people 

away from Afghanistan, is now—and others are more qualified to 

testify about it—the ability to find someplace for them to be. 

Mr. NADLER. Well, Mr. Hafetz, if someone is in the United States 

and we think that he shouldn’t be in the United States, we try to 

deport him. If no government will accept him, do we keep that person in jail? 

108 

Mr. HAFETZ. No, we cannot keep that person in jail indefinitely. 

There is a period of time—— 

Mr. NADLER. So under what authority—and I think I will ask 

Mr. Berenson, too, in a moment—under what authority do we keep 

someone who has been adjudged not a threat, not an enemy combatant, do we keep them in jail because we can’t find—having 

brought them to Guantanamo, would the law not require that we 

simply release them in the United States if we brought them here 

and they can’t go anywhere else and they have been judged not a 

threat and not an enemy combatant? 

Mr. HAFETZ. In my view, it would. And the answer that the government would rely on is the President’s power as Commander-inChief, which, in its view, allows it to do virtually anything. 

Mr. NADLER. Mr. Berenson, the President’s power as Commander-in-Chief allows him to hold someone in jail who has been 

judged not an enemy combatant, not a threat and guilty of no 

crime, indefinitely? 

Mr. BERENSON. As soon as someone is determined not to be an 

enemy combatant, our government tries very hard to find a 

place—— 

Mr. NADLER. Yes, but let’s assume it could never do that. What 

then? 

Mr. BERENSON. Well, the notion of bringing them into the United 

States strikes me as extremely dangerous. Let’s not forget that 

there have been mistakes made. 

Mr. NADLER. Excuse me. Why is it extremely dangerous to bring 

someone in the United States who has been adjudged not to be a 

threat to the United States? 

Mr. BERENSON. Because we are not always right about that. 

There are dozens of documented instances where—— 

Mr. NADLER. Fine. Then let me ask a different question. 

So it is dangerous to bring them into the United States, we have 

brought them here, and, because of our mistakes, we are going to 

hold them in jail forever, even though we have adjudged them not 

to be guilty of anything, not to be an enemy combatant and not to 

be a threat? 

Mr. BERENSON. I don’t think anybody wants to hold those people 

forever or—— 

Mr. NADLER. Never mind they want to, but that is what we are 

going to do if we can’t find a foreign country to accept them? 

Mr. BERENSON. Well, we are going to work as hard as we can to 

find someplace to send them, and eventually we will. 

Mr. NADLER. Do we have the right under our law, in your opinion, to keep them in jail forever if we cannot find such a foreign 

country? 

Mr. BERENSON. I mean, if the only alternative is to release them 

into the population of the United States and give them immigration 

status—— 

Mr. NADLER. Your answer is yes. 

Mr. BERENSON. I am just not—it is a series of bad choices at that 

point—— 

Mr. NADLER. That we have created. 

Mr. BERENSON. Well, listen, we make mistakes all the time in 

this and lots of other arenas. And, you know, the question is, what 

109 

do we do to fix them? And I think we try very hard to fix them 

in these cases. 

Mr. NADLER. I thank you. 

My time has expired. The gentleman from Arizona? 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

I guess, just for the record here, Commander Swift had mentioned some time ago that I had made some sort of a reference to 

criminal defendants; that I would have the criminal defendants not 

have any due process at all. 

First of all, I have never referred to them as criminal defendants, 

because I think that implies that they are defendants under the 

Constitution of the United States, which I do not believe. And I believe that that is the pertinent question before this Committee. 

Indeed, I believe that they are unlawful combatants, and I believe that that law that I speak of that makes them unlawful is essentially every war laws that we have in the world. And what 

makes them unlawful combatants besides is their willingness to 

slaughter innocent people. 

There was a statement made that the notion that we wouldn’t afford them constitutional rights was un-American. First of all, 

America has never afforded constitutional rights to people in the 

battlefield. So that is, kind of, on the face of it, an incorrect statement. 

But let me tell you what is really un-American. What is unAmerican is blowing innocent women and children up. What is unAmerican is cutting people’s heads off with a hacksaw while the 

victims scream in front of a TV camera. Those things are the unAmerican things. 

And, again, I am just astonished at how much we have veered 

off of the real subject here. It is too bad that we don’t have as much 

focus in this Committee and in Congress on stopping terrorists 

from continuing to wreak the havoc and hell that they have done 

in the past. We are focused on making sure that we give them 

more due process than any country in the history of humanity has 

done and which we already do. 

With that said, Mr. Berenson, as I suggested, your testimony 

here has been so compelling. And I am hoping that you might be 

able to expand on some of the points that you were talking about 

earlier with the Chairman. 

Mr. BERENSON. Yes, I guess the main point there has to do with 

the risk of error in these detentions. 

Everybody understands that in any kind of detention, whether it 

is in our criminal justice system or it is in wartime in a traditional 

war like World War II or in this kind of unconventional war, there 

is going to be an error rate in detention, just as there is in who 

you shoot, who you drop a bomb on, what property you destroy. 

That is just reality. 

The question is, what kind of error rate shall we tolerate, and 

how much process shall we build in to reduce the risk of error? 

More process probably will reduce the risk of error, but the question is, at what price? 

And one of the prices that we pay for building in more process 

is creating more of the opposite kind of error; that is, erroneous releases rather than erroneous detentions. 

110 

In wartime, nations have traditionally not regarded protecting 

the rights of their presumed adversaries as the paramount value. 

They naturally protect themselves and protect their societies and 

understand that a lot of innocent people are going to get hurt in 

the process, and that is just one of the terrible but unavoidable 

things about war. 

If we engraft habeas corpus protections onto the existing system, 

I can guarantee that we will have more erroneous releases. Each 

erroneous release represents a risk of another 9/11 or worse. 

Even under these procedures, and earlier ones which some of the 

other panelists think are manifestly inadequate, there are dozens 

of documented instances where we have found detainees to be not 

enemy combatants, repatriated or released them, and then found 

them on the battlefield fighting against us once more. That is a 

very high price for a nation at war to pay. 

Mr. FRANKS. Thank you, sir. 

Mr. Chairman, I guess I will just try to associate myself with Mr. 

Berenson’s comments. I believe that if we grant the writ of habeas 

corpus to prisoners in Guantanamo that we believe are terrorists, 

that the effect will be more of our soldiers will die and that we will 

take a greater risk of endangering American citizens. 

And I truly believe that a dirty bomb or some terrible terrorist 

attack on this country will transform this debate very dramatically. 

With that said, I would like to ask one question of Commander 

Swift. 

The Military Commissions Act, far from abolishing the writ of 

habeas corpus, provides captured unlawful enemy combatants with 

judicial review opportunities that far exceed constitutional requirements. 

Can you describe any system of judicial review in any other 

country in the world that has provided greater procedural protections to unlawful enemy combatants that were at war with that 

country than we have? 

Commander SWIFT. The International Criminal Tribunal for 

Yugoslavia, the International Criminal Tribunal for Rwanda, the 

current tribunal set up for Sierra Leone, the Uniform Code of Military Justice, the British detainment act, the Israeli detainment act, 

all provide more and none permit tortured testimony. 

Mr. FRANKS. Nor does ours. Under our laws, it is 20 years in 

prison to torture any person in our custody, and if they die, it is 

a death penalty. 

There is a lot of distortion there, Mr. Swift. 

Commander SWIFT. Well, sir, it might be a penalty for it, but 

under the Military Commissions Act nothing prevents the government from entering testimony that was obtained by inducing the 

system a feeling or sensation or drowning to the point that one believes one is going to die. And at that point, if the confession or 

statement against someone else is brought forward, the Military 

Commissions Act permits that testimony to be entered. 

It permits testimony to be entered—I will just give you one example, sir. 

Mr. FRANKS. Forgive me, Mr. Chairman, I know my time is up 

here. But if such testimony was going to save millions of lives, or 

111 

thousands, or tens of thousands of lives, we would be derelict in not 

making sure that we understood that. 

Commander SWIFT. Sir, you asked me whether those systems 

would permit it. 

Mr. NADLER. The gentleman’s time has expired. The witness may 

answer the question. 

Commander SWIFT. Yes, sir. 

A, the debate on how to interrogate someone is a different debate. The debate for here is whether a court of law should consider 

the testimony or not, sir. And under none of those systems, including Israel’s system, would that testimony be considered. 

Great Britain has dealt with this in Ireland. Israel deals with it 

every day. And when we look at both of those systems, they have 

been able to do it without compromising their judicial integrity. 

And I argue that the military system and the existing Federal system can do it as well. 

Mr. FRANKS. Mr. Chairman, I just have to respond, with unanimous consent, for 30 seconds. 

Mr. NADLER. Gentleman is granted—— 

Mr. FRANKS. If indeed—— 

Mr. NADLER. By unanimous consent, the gentleman is granted an 

additional 30 seconds. 

Mr. FRANKS. If indeed the gentleman is suggesting that Israel— 

I don’t know about Rwanda—but that the gentleman is suggesting 

that Israel grants its own constitutional rights to its prisoners of 

war in a suggested situation like that, I would love to see the proof 

of that. 

And with that, I yield back. 

Mr. NADLER. Well, the gentleman can answer that question. 

Commander SWIFT. Sir, I am referring basically to the Israeli Supreme Court decision in the use of testimony and the trial of persons detained, members of the PLO or other terrorist organizations. 

Mr. FRANKS. That wasn’t my question. That wasn’t my question. 

Commander SWIFT. I thought it was. 

Mr. NADLER. The gentleman’s time has expired. 

The gentlelady from Florida? 

Ms. WASSERMAN SCHULTZ. On that note, thank you, Mr. Chairman. 

I represent a district in south Florida, so obviously Guantanamo 

is of strategic importance and concern to my constituents and to 

me. 

And quite honestly, I have not determined that I believe that 

Guantanamo should be closed. In fact, Lieutenant Commander 

Swift, I believe in your testimony you said that Guantanamo Bay 

should represent the best of the rule of law. 

And that is really the spirit in which I view how we should be 

conducting operations at Guantanamo. I think, rather than simply 

closing it, we should be conducting investigations and questioning 

in an appropriate way that upholds human rights. 

And I want to ask you, Commander Swift, about the President’s 

conversation last week with Vietnamese President Nguyen Minh 

Triet. And they discussed trade and human rights issues. The 

President was quoted to have said, ‘‘In order for relations to grow 

112 

deeper, it is important for our friends to have a strong commitment 

to human rights, freedom and democracy.’’ 

Do you think that the continued detention of hundreds of men 

without charge and without habeas rights at Guantanamo makes 

us hypocrites? 

Do you not feel that this paints us as hypocrites when we ask 

countries such as Vietnam, China, Sudan to adhere to standards 

that we ourselves don’t follow? 

Do you think that this undermines U.S. efforts to win hearts and 

minds, an essential component of any successful counterinsurgency 

strategy? 

And do you not also believe that this puts U.S. troops at risk, 

making it harder to credibly object if our own soldiers are taken 

into custody and held indefinitely without charge and without the 

ability to contest the basis of their detention? 

And, lastly, I will say that, as a Member of Congress who also 

argues that we should ensure that Cubans have human rights and 

who stands up for their human rights and supports the current restrictions on our interactions with Cuba, doesn’t it further make us 

hypocrites, right on the very land that we are violating people’s 

human rights, that we insist that the country on the other side of 

the fence do the same? 

Commander SWIFT. You missed my earlier testimony, ma’am. 

Yes. The answer is yes. I will only expand on this. 

You know, down in Guantanamo Bay, you can’t help but hear the 

Cuban radio station. It bleeds over. And my translator is fluent in 

Spanish, and I am okay, barely okay, and we listen to it. 

And what strikes us is that, if you listen to the regular news, 

well, I guess they have their spin is the best I can put on it, until 

they get to Guantanamo Bay, wherein they don’t spin it at all. 

They just read it off and argue that this demonstrates, here on 

Cuban soil, who the United States really is and how they act toward people who don’t agree with them. 

And, again, that part, the image that Guantanamo Bay poses to 

us and the danger that it presents to us not to follow the rule of 

law, I agree with Mr. Berenson: There is always this question in 

safety, on procedure. But I disagree on the idea that if you let one 

guilty person go, you are—an incredible threat. 

To me, Guantanamo Bay, as a recruiting magnet and as a cloak 

for those who would abuse human rights the world over, does far 

more damage than any one person who might be let go by following 

the rule of law. 

Ms. WASSERMAN SCHULTZ. Mr. Hafetz, since my time has not expired, if you wouldn’t mind addressing my question as well. 

Mr. HAFETZ. Well, I agree completely with everything that Commander Swift said. 

You know, the goal here is to create a rights-respecting approach 

to national security policy, an approach that balances liberty and 

national security, that enables us to effectively fight terrorism and 

remain strong while remaining true to our values. 

And Guantanamo contradicts that. It undermines that in every 

possible respect. It undermines the United States’s moral credibility. It undermines support among moderate Arab and Muslim 

113 

communities whose support is absolutely essential to fighting terrorism. 

So, you know, for these reasons, Guantanamo is really an eyesore 

and it undercuts the fight against terrorism. 

And, again, one of the principal reasons for that is the absence 

of a lawful process, the absence of habeas corpus and the failure 

to provide what is really a cornerstone of our values and our system, and has always been. 

Mr. NADLER. Thank you. The gentlelady’s time has expired. 

The gentleman from Ohio is recognized for 5 minutes. 

Mr. JORDAN. Thank you, Mr. Chairman. 

I want to go back to—and Commander Swift has actually alluded 

to this twice now, but earlier he was a little more adamant about 

it. He said that Guantanamo Bay represents the biggest recruitment poster that there is for terrorists. 

And I would just kind of want to get the rest of the panel’s response. And let me attempt to frame it first before I ask you what 

your response to his statement. 

Because I am always troubled by this, that somehow America’s 

actions are what caused the terrorists to do the things, the bad 

things they have done to us. And I would say, you know, what was 

the recruitment poster prior to the USS Cole? What was the recruitment poster prior to the Khobar Towers? What was the recruitment poster prior to the first World Trade Center? What was 

the recruitment poster prior to our Marine barracks being bombed 

in Lebanon? What was the recruitment poster prior to 1979 when 

they took over our embassy in Iran and held hostage American citizens? 

I mean, at what point does that logic break down? Because you 

can go all the way back. 

And I have been here for an hour now and haven’t heard from 

Mr. Katsas, so let’s start with Mr. Katsas. 

Mr. KATSAS. I think that is a very good point. The notion that 

if we ratchet up the protections at Guantanamo Bay with respect 

to combatant status review tribunal procedures, military commission prosecutions, how we treat the individuals there, the notion 

that incrementally improving or substantially improving the procedures would cause al-Qaida to just wither away and say, ‘‘Well, 

that is fine, never mind, we will stop,’’ seems to me fanciful. There 

will always be radical elements willing to attack the United States. 

With respect to the different question about how reasonable people react to what is going on, I frankly think there must be a failure of explanation on our part, because the fact of the matter is, 

both with respect to protections in the combatant status review tribunals and with respect to protections in the military commission 

prosecutions, we have exceeded historical norms for the conduct of 

a war. We have exceeded norms applied internationally, judged by 

reference to the relevant law-of-war baseline. And I don’t think the 

United States has anything to be ashamed about in that record. 

Mr. JORDAN. Mr. Taft? 

Mr. TAFT. Thank you, sir. I would just make two points. 

I agree, generally, with what Mr. Katsas said about the effect of 

what we are doing and how we are conducting ourselves in the war 

114 

on terror on our enemies. They are not impressed. They will not 

be better or worse because of what they see us doing. 

I think there is a cost to us, actually, with, potentially, our 

friends, who—their publics are not—have been very distressed and 

publicly unsupportive of a lot of actions that we take, not necessarily in the war on terror but in Iraq, in other areas of the 

world, where their enthusiasm for our policies has been diminished 

because of disagreements over the policies that we have been following vis-a-vis the terrorists. 

And when the British, for example, said that they couldn’t accept 

our system down there because it was not consistent with civilized 

norms, I think that hurt us very much in getting cooperation and 

assistance from that crucial ally, who wants to think as well of us 

as it possibly can. 

And so that is where the cost comes. It is not with your enemies; 

they are hopeless. 

Mr. JORDAN. Thank you. I have got 30 seconds. 

Mr. BERENSON. I will be brief because I have very little to add 

to what Mr. Taft and Mr. Katsas said. 

I think it is absolutely correct that Guantanamo is a recruiting 

tool. Surely it is a recruiting tool. But if we were to wave a wand 

and make it disappear tomorrow, that would not stop recruiting efforts. And I think it would not meaningfully slow recruiting efforts. 

They have a laundry list of other grievances. September 11, 

2001, happened after a period in which President Clinton invested 

more of this Nation’s capital and energy in trying to resolve the 

Arab-Israeli problem than had happened in a long, long time. 

One of their grievances against us in the 1990’s had to do with 

our stationing troops in Saudi Arabia, which happened only because we intervened to protect one Muslim nation, Kuwait, from 

another, Iraq. 

So the world view on the other side is so warped and so different 

that certainly nothing having to do with habeas corpus rights is 

going to, in my view, meaningfully affect recruitment. 

Mr. JORDAN. Thank you, Mr. Chairman. I think my time—— 

Mr. NADLER. Thank the gentleman. 

I now recognize the gentleman from Tennessee, Mr. Cohen, for 

5 minutes. 

Mr. COHEN. Thank you, Mr. Chairman. 

And if any of this is duplicated with other questions, I apologize. 

I think it was Mr. Berenson, when I listened to your testimony, 

you talked about this being a war on terror and unique situations. 

How do we define who the combatants are in a war on terror? 

Mr. BERENSON. I actually am one of those people who believes 

‘‘war on terror’’ is a bit of a misnomer. That is a tactic that could 

be employed by a variety of different people. 

I think it is a war on an ideologically motivated group, religiously based fascists, militant Islamists, who are willing to use extreme violence to try to reimpose a caliphate on at least part of the 

world. And I think our adversaries, the enemy combatants, are defined by their adherence to that philosophy coupled with their 

pledged commitment to use extreme violence against us to try to 

make it ascendant. 

115 

Mr. COHEN. So they have to be Islamists? If they just wanted to 

rain terror on our country for some other reason other than religiously inspired, they would not be considered part of the war on 

terror? 

Mr. BERENSON. I believe that is correct. I am not aware of any 

other terror group at this point that the United States government 

regards as posing a military threat to us. 

Mr. COHEN. So anybody else, would you think it would be all 

right to give them habeas corpus? 

Mr. BERENSON. Well, if they were here in the United States or 

if they were U.S. citizens, we would. If there were terrorists of 

some other sort in Indonesia and our intelligence services had some 

reason to interact with them, I don’t believe habeas corpus would 

extend to them there. 

Mr. COHEN. But there would have to be a religious test. Somebody would have to determine what their religion was to see if they 

fell under the war on terror, to see whether or not they were disqualified from having this particular American cornerstone of justice extended to them? 

They would have to fail this religious test and be one of the antireligions. Is that right? 

Mr. BERENSON. It is not a religious test. I need to be very clear 

about that. The vast majority of Muslims are in no way affected by 

this at all. 

It is a test about belonging to particular militant groups that 

have been waging war against us for more than a decade. That 

would be al-Qaida and its affiliated organizations and the Taliban. 

It is really those groups. There is a religious component to who 

they are and what they believe, but the test is not itself religious. 

Mr. COHEN. What if there was, like, an agnostic over there, but 

they didn’t like the fact that we had invaded their country, destroyed their culture, destroyed their economy, but they didn’t like 

us as an invading power and they did some act against us and they 

were captured. 

Would they qualify if they didn’t want the caliphate to be reimposed, they just—— 

Mr. NADLER. The gentleman’s time has expired. The witness may 

answer the question. 

Mr. BERENSON. I don’t think al-Qaida or the Taliban would be 

a particularly comfortable place for agnostics, but I think there 

probably are people of that description in Iraq, for example. And 

I believe our nation’s current policy is to treat them according to 

the Geneva Conventions, and I believe that is what we do. 

Mr. NADLER. Thank you. 

And we have been joined now by the gentlewoman from Texas, 

Ms. Jackson Lee, who is a Member of the full Committee but not 

a Member of the Subcommittee. 

With unanimous consent, she will permitted to sit in the Subcommittee and will be recognized for 5 minutes to ask questions of 

our witnesses after the Members of the Subcommittee have had the 

opportunity to do so. 

Mr. FRANKS. Chairman, I would have to object on that. 

Mr. NADLER. Excuse me? 

116 

Mr. FRANKS. Kind of a longstanding objection to Mr. Smith, Mr. 

Chairman. 

Mr. NADLER. I would ask my colleague to reconsider the gentlewoman from Texas a Member of this Committee. I realize that the 

Ranking Member of the full Committee, the gentleman from Texas, 

has a declared policy of objecting to the participation of other Members of the Committee in our work. That is regrettable and not 

helpful to our work. 

For example, in the past, the minority has objected to the participation of our full Committee colleague from Massachusetts, Mr. 

Meehan, in the hearing on the reform of the Lobby Disclosure Act, 

an issue on which he is the recognized leader and expert. 

In prior Congresses, other Members of the Committee and other 

Members of the House have been allowed, as a matter of comity 

and courtesy, to proceed in our proceedings. No one has objected. 

It is a small courtesy that has previously been extended to Members on both sides of the aisle. I hope the gentleman would reconsider his objection on this occasion. 

Does the gentleman insist on his objection? 

Mr. FRANKS. Mr. Chairman, unfortunately I have to insist on the 

objection. If there is an opportunity for the Chairman of this Committee and the Ranking Member of the Committee to work this 

thing out in the spirit of comity, I would be certainly very amenable to that. But given the nature of the situation, I would hope 

that we could take that up with the Ranking Member of the full 

Committee. 

Mr. NADLER. The gentleman is within his rights under the rules. 

The objection is heard. 

Clause (2)(g)(2)(C) of Rule XI of the Rules of the House declare, 

‘‘A member, delegate or resident commissioner may not be excluded 

from non-participatory attendance at a hearing of a committee or 

subcommittee.’’ Pursuant to the rule and in light of the gentleman’s 

objection, the gentlewoman is entitled to non-participatory attendance. 

I would remind my friend that I fully intend to apply the rules 

in a consistent and even-handed manner. I very much regret this 

objection. I am glad the objection was not heard yesterday at this 

Committee’s hearing on the 9/11. 

On behalf of the Subcommittee, I want to apologize to our colleague from Texas. 

I will now recognize—— 

Ms. JACKSON LEE. I thank the Chairman. 

Mr. FRANKS. Might I just tell the gentlelady that there is certainly nothing personal intended on my part whatsoever. 

Ms. JACKSON LEE. Thank you. 

Mr. NADLER. And I should add that the only reason that the objection was not made yesterday was that we had the unanimous 

consent before our Members of the minority were present. [Laughter.] 

So as not to make it seem as if the Members of the minority are 

discriminating against the gentlelady from Texas. 

Ms. JACKSON LEE. Thank you. I watched that on late-night television. So thank you, folks. [Laughter.] 

Mr. NADLER. You are quite welcome. 

117 

Ms. JACKSON LEE. Thank you for clarifying that it is not personal. Thank you. 

Mr. NADLER. I now recognize the gentleman from Minnesota for 

5 minutes. 

Mr. ELLISON. Thank you, Mr. Chair. 

And I also want to extend my apologies to Congresswoman Jackson Lee, who is always insightful and always has excellent and important questions that are often missed. So it really is too bad we 

couldn’t get better cooperation. 

But my question is for Mr. Katsas and also for you, Mr. 

Berenson. And I would like if you both feel free to jump in. You 

have both been clear; you have articulated your positions very well. 

While I will freely admit I don’t agree, let me ask you this. What 

about this point: that by having fewer rights for the detainees, or 

having—to put it like this, the situation in Guantanamo and the 

detainees, the lack of habeas corpus rights there, don’t you agree 

that we do pay a cost? 

I mean, I am not asking how highly you rate it, but don’t you 

agree we do pay a cost, in terms of our reputation, in terms of our 

standing in the world, with regard to being a symbol of civil and 

human rights? 

Mr. BERENSON. I do agree, Congressman Ellison. In my written 

testimony, I acknowledge that extending greater procedural rights 

to the detainees, along with probably lots of other things, could be 

expected to have some benefit. How big is a very big question in 

my mind, as an earlier answer suggested, but it could be expected 

to have some benefit, in terms of world opinion. 

And I don’t discount the value of world opinion, not just for making us, as a Nation, feel good about ourselves and feel true to our 

traditions and our principles, but also in terms of the effectiveness 

of the war. I am not dismissive of that. I am skeptical about whether extending habeas rights will meaningfully impact that. 

I also think we have to be careful not to over-weight those considerations, because sometimes the Nation has to act in its own interests to protect its own citizens, even when that will make it unpopular. 

But I don’t discount that at all. 

Mr. ELLISON. Mr. Katsas? 

Mr. KATSAS. I think I would give the same answer that I gave 

a few moments ago. I don’t think it has any material effect on the 

people who are actually waging war against us. 

Mr. ELLISON. Okay, thank you. Thank you. 

There was an earlier question in which we were talking about 

this subject, and I think one of my colleagues made the point that 

there had been other instances in the past, and they asked the rhetorical question, ‘‘What was the poster child then?′′ 

But I think it is—and just recalling my own history for a moment, it sounds to me like not all of these incidents involving people who call themselves Muslims, who either attacked the United 

States or an embassy—that these are different historical circumstances in some of those cases. 

For example, in 1979, when the American embassy was stormed, 

aren’t the historical circumstances in Iran quite a bit different from 

118 

what led to the historical lead up to, say, the 1993 World Trade 

Center incident and also the World Trade Center? 

Mr. Hafetz, what is your understanding of history? Can we lump 

all these things together, or are they, in some ways, different? 

Mr. HAFETZ. I think it is very dangerous to lump those things 

together, and I didn’t quite understand the reference to the ‘‘they’’ 

in the 1979 in Tehran. I assumed the ‘‘they’’ was the—— 

Mr. ELLISON. It is the students. 

Mr. HAFETZ [continuing]. The students, which I have not read 

anywhere were responsible for September 11th. You know, it is a 

different issue. 

I think it is very important to keep in mind, I think this is a 

problem with this, sort of, notion of this global war on terrorism 

and unchecked executive power, is that it prevents carefully 

thought out, calibrated responses to the real threat. It allows for 

or it leads to often bad information, misjudgments. 

And sort of lumping everyone together prevents us sometimes 

from seeing clearly what the real threat is and then going after 

that real threat, rather than just sort of lumping everyone together 

in a generalized ‘‘us and them’’ mentality, which, frankly, according 

to many experts, including I would refer you to the work of Louise 

Richardson, a leading terrorism expert—according to many of these 

experts, actually this plays exactly into the terrorists’ hands. 

Mr. ELLISON. When you say ‘‘they,’’ as if all the people involved 

in these incidents are all united and are operating out of a central 

plan, that does actually feed directly into the argument that I believe Commander Swift was referencing earlier, is that I am sure 

that Osama bin Laden would love to be able to say that ‘‘They are 

against all of us,’’ even though the historical circumstances behind 

these incidents is unique and different. 

Commander Swift? 

Oh, we are done? 

Mr. NADLER. Finish your question. 

Mr. ELLISON. Commander Swift, would you like to respond 

to—— 

Commander SWIFT. Certainly. 

Mr. NADLER. The time of the gentleman has expired. The witness 

may answer the question. 

Commander SWIFT. Yes, sir. I will put it simply in respect to 

Guantanamo itself. 

In Guantanamo, those of us who have represented down there 

know that there is an ongoing battle between those who absolutely, 

immediately say, ‘‘Yes, I will kill Americans; there is no process.’’ 

Those people, in my experience, the hard core in Guantanamo, 

don’t meet with their lawyers, don’t want their lawyers, don’t want 

anything to do with this. 

Those who want to believe in the process, who may or may not 

have been picked up in error, who are represented—there is a constant battle inside the prison itself for recruitment on who you are 

going to recruit. Constantly my client has suggested that he is a 

fool to put his trust in an American lawyer or to spend any time 

with him and that of course I will sell him out because of who I 

am. And that battle goes on every day. 

119 

I don’t mean to suggest that without Guantanamo Bay there 

won’t be those to oppose us. But I would ask whether, the day after 

9/11, whether we think the majority of the Muslim world was 

against us or with us, the majority of Saudi Arabia, the majority 

of Yemen. And as these policies go out, it is for that elastic center 

that we play. 

There will always be enemies. The question is, how many friends 

can we make? 

Mr. NADLER. Thank you. 

The gentleman from Indiana is recognized for 5 minutes. 

Mr. PENCE. Thank you, Chairman. And thank you to the Committee for assembling this learned panel of distinguished Americans. 

I would like to focus my questions on Mr. Berenson, the few minutes that I have. 

And having been otherwise employed today at a few markups 

and otherwise, I apologize to the panel for not being here for their 

live testimony. But I look forward to reviewing the transcript. 

But I must tell you, Mr. Berenson, I am preoccupied every day 

with the issue of the protection of the American people. It seems 

to me that the oath of office I take really begins with making those 

decisions necessary to provide for the common defense. 

And so the question of whether the Constitution was meant to 

extend its protections to foreign enemies of this country is kind of 

inherently contradictory to me. But I am willing to consider these 

issues, because I cherish the Constitution, and I am willing to consider these issues thoughtfully. 

Let me ask very specifically, Mr. Berenson, if the detainees from 

Guantanamo are transferred, as some have suggested, to Fort 

Leavenworth, Kansas, can you describe for me, as a result of that 

change in their geographic location, how would their rights change? 

Mr. BERENSON. There is an important respect in which their 

rights would change, and then there are some other significant disadvantages. 

Once they are on U.S. soil, they do have a greater claim to the 

protection of our laws and our Constitution. There would be a 

much more serious question about the constitutionality of the Military Commissions Act’s restrictions on judicial review as to people 

who are located in Kansas than people who are located in Cuba. 

And I believe Mr. Hafetz’s client, Mr. al-Marri, was in that category. So their legal rights would be greater. The claims that they 

would have on our system would be greater. 

Perhaps equally as important, bringing them to Leavenworth 

would put the citizens of Kansas at risk because immediately Fort 

Leavenworth becomes an accessible target to their confederates on 

the outside, an object of possible terrorist attack. And it is here on 

our soil. I don’t know why we would want to create more targets 

than we already have here on U.S. soil. 

And finally, I think bringing them into a mainstream U.S. prison 

population creates the potential for, as we have been discussing in 

other contexts, recruitment. I think that unless you were going to 

keep these people segregated or in solitary confinement or in some 

other way, there is no doubt but that they would try to recruit U.S. 

citizens. 

120 

And by far the most dangerous kind of adversary we have here, 

the most prized kind of recruit for al-Qaida, is a U.S. citizen, precisely because of the citizen’s ability to blend into the population, 

its knowledge of our customs and our mores, and their ability to 

avoid some of these tougher measures that we can apply to alien 

enemy combatants. 

Mr. PENCE. So you said, with regard to the law and the Constitution, I am very interested in your notion that there is something 

about being on U.S. soil that gives one greater purchase—— 

Mr. BERENSON. Absolutely. 

Mr. PENCE [continuing]. Protections of the Constitution. I don’t 

discount that. And it in very many respects is the focus of this 

hearing. 

Let me make sure I understand your second point, if I can. Specifically, the people of Leavenworth, Kansas, should know that at 

the moment at which enemy combatants are transferred to their facility, that Leavenworth would become a very attractive target for 

terrorist elements. 

Is that what you are referring to, or—— 

Mr. BERENSON. That is my own personal view. Leavenworth 

would gain the kind of currency in jihadi circles that Guantanamo 

currently has. The difference is that one is in Cuba and one is in 

the heartland. I would rather have their focus on Cuba than on 

Kansas. 

Mr. PENCE. Going back to your first point, the greater purchase 

on rights associated with questioning military tribunals and detainment, habeas corpus rights, elaborate for me, if you will. Because I think most Americans don’t understand the nature of that 

greater purchase on the Constitution: that once we bring people 

onto the soil of the United States of America, there are rights and 

privileges that attach to persons. 

It is one of the great miracles of the Constitution. It is one of my 

bases for my pro-life positions. And I think the Constitution answers to persons, and the argument over personhood is very much 

the American argument throughout our history. And so we are not 

a Nation that extends our rights and privileges to citizens. 

So talk to me, if you can, about when an individual becomes a 

person within the jurisdiction of the United States. 

Mr. BERENSON. Sure. 

Mr. NADLER. Gentleman’s time is expired. The witness may answer the question. 

Mr. BERENSON. There is a general point and a specific point. 

The general point is that the protections of the Constitution flow 

to people who have a meaningful connection with the United 

States. They are at their fullest flower with U.S. citizens, and they 

follow those citizens throughout the globe. So what our government 

cannot do to me here, it cannot do to me in France, so there is a 

nationality principle. 

But then there is also a territorial principle. That is, the Constitution reigns where the United States government reigns territorially. So even aliens, even illegal aliens, who come onto our soil 

are entitled to a much greater level of protection from our Constitution than they would receive if they were abroad. 

121 

The Supreme Court in the Verdugo-Urquidez case said that DEA 

agents were not violating the Constitution when they essentially 

kidnapped a drug lord down in Mexico. If that drug lord had been 

in the United States, the same thing could not have happened. You 

would have had to arrest him according to constitutional norms 

and treat him as a criminal suspect. 

The specific point relates to habeas corpus: the wartime cases 

where the Supreme Court has reviewed enemy combatant determinations have involved people here. The Nazi saboteurs came 

ashore on Long Island and were captured here, and that is why 

they had access to the Federal courts. 

So the policy choice that I believe Congress has, as it relates to 

Cuba or other places outside our shores, is largely taken away if 

we bring those people here in the U.S. The Constitution will dictate 

access to the courts. 

Mr. PENCE. Thank you, Chairman. 

Mr. NADLER. With unanimous consent, I will ask for 30 seconds. 

Mr. Berenson, didn’t the Supreme Court, on your last point, in 

one of the cases—or Mr. Berenson, Mr. Hafetz—say that, given the 

control the United States has in perpetuity over Guantanamo, it is 

essentially the same as the United States for geographical purposes? 

Mr. HAFETZ. Yes, it did—— 

Mr. NADLER. Mr. Berenson first, and then Mr. Hafetz. 

Mr. HAFETZ. Oh, sorry. 

Mr. BERENSON. No, no, go ahead. We will do point/counterpoint 

on this. 

Mr. NADLER. No, Mr. Berenson first because I asked you first, 

and then Mr. Hafetz. 

Mr. BERENSON. Yes, sure. 

The Supreme Court has not held that Guantanamo Bay is the 

United States. There were some comments made by Justice Kennedy in a concurrence, which, if you stitched them together with 

some comments made in Justice Stevens’s opinion, give grounds for 

people to expect that it is possible that when this next comes up 

before the Supreme Court there will be five votes to say that our 

Constitution extends to Guantanamo Bay. 

I believe that that view is not correct. There will probably be a 

full briefing on it. 

Among other things, in Guantanamo Bay—I learned this when 

I went and visited there—we don’t have the most basic element of 

a property right; namely, the right to exclude. Cuban commercial 

vessels are entitled to traverse the bay on our territory, without 

our permission. 

So there are a lot of reasons to think that—— 

Mr. NADLER. But they can’t come onto land, can they? 

Mr. BERENSON. No, I don’t believe they can come onto land, but 

they can traverse the bay—— 

Mr. NADLER. Thank you. 

Mr. Hafetz? 

Mr. HAFETZ. I think the court’s opinion in the Rasul case makes 

clear that Guantanamo is considered U.S. territory by virtue of the 

long-term, permanent, exclusive jurisdiction and control that the 

122 

U.S. exercises there. It is, for all intents and purposes, U.S. territory. 

Mr. NADLER. And the fact that, as Mr. Berenson points out, commercial vessels can criss-cross the bay, that is irrelevant for the 

court’s decision? 

Mr. HAFETZ. I think that consideration would have been irrelevant to the court’s decision. I don’t know that I have looked at that, 

but it was irrelevant. 

I mean, the fact of the matter is this, as I say, basically, for all 

practical purposes, U.S. territory. Again, it is in the concurring 

opinion of Justice Kennedy where he says it is essentially United 

States territory. And having been down to Guantanamo a number 

of times, I mean, this really looks like the United States. It has 

McDonald’s, it has Starbucks, et cetera. 

Mr. NADLER. I have been there, too. But it is not important what 

it looks like; it is that the Supreme Court seems to think so. 

Mr. HAFETZ. Yes, this is a U.S. enclave. 

Mr. NADLER. Thank you. 

On behalf of the Subcommittee, I want to thank our witnesses 

for appearing here today, for your testimony on this very important 

question. 

Without objection, all Members have 5 legislative days to submit 

to the Chair additional written questions for the witnesses, which 

we will forward and ask the witnesses to respond as promptly as 

you can so that your answers may be part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

And again, let me thank the witnesses and thank the observers 

for being patient. 

And with that, this hearing is adjourned. 

[Whereupon, at 4:15 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK, AND CHAIRMAN, SUBCOMMITTEE ON

THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES


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