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                                                        S. Hrg. 109-600



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                             JUNE 15, 2005


                          Serial No. J-109-25


         Printed for the use of the Committee on the Judiciary

24-332                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   204
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................   250
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Barr, William P., former Attorney General of the United States, 
  and Executive Vice President and General Counsel, Verizon 
  Corporation, Washington, D.C...................................    46
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C................................................    11
Hemingway, Thomas L., Brigadier General, Legal Advisor to the 
  Appointing Authority for the Office of Military Commissions, 
  Department of Defense, Washington, D.C.........................     7
Margulies, Joseph, Margulies and Richman, Minneapolis, Minnesota.    43
McGarrah, James M., Rear Admiral, Director of Administrative 
  Review of the Detention of Enemy Combatants, Department of the 
  Navy, Washington, D.C..........................................     5
Schulhofer, Stephen J., Professor, New York University School of 
  Law, New York, New York........................................    49
Swift, Charles D., Lieutenant Commander, Defense Counsel, Office 
  of Chief Justice Counsel, Department of Defense, Washington, 
  D.C............................................................    48
Wiggins, J. Michael, Deputy Associate Attorney General, 
  Department of Justice, Washington, D.C.........................     9

                         QUESTIONS AND ANSWERS

Responses of Michael J. Wiggins to questions submitted by 
  Senators Biden, Cornyn, Leahy, and Feingold....................    65
Responses of Admiral McGarrah and General Hemingway to questions 
  submitted by Senators Leahy, Biden, Feingold and Cornyn........    73
Responses of Joseph Margulies to questions submitted by Senators 
  Specter, Leahy, and Members of the Committee...................   138
Responses of Glenn A. Fine to questions submitted by Senators 
  Biden and Feingold.............................................   143
Responses of Stephen J. Schulhofer to questions submitted by 
  Senators Biden and Leahy.......................................   147

                       SUBMISSIONS FOR THE RECORD

Amnesty International USA, New York, New York, statement.........   179
Barr, William P., former Attorney General of the United States, 
  and Executive Vice President and General Counsel, Verizon 
  Corporation, Washington, D.C., statement.......................   184
Chicago Sun-Times, Mark Steyn, article...........................   202
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C., statement....................................   206
Hemingway, Thomas L., Brigadier General, Legal Advisor to the 
  Appointing Authority for the Office of Military Commissions, 
  Department of Defense, Washington, D.C., statement.............   220
Human Rights First, Deborah Pearlstein, Director, U.S. Law and 
  Security Program, Washington, D.C., statement..................   225
Jacoby, Lowell E., Vice Admiral, U.S. Navy and Director, Defense 
  Intelligence Agency, Washington, D.C., declaration.............   237
Margulies, Joseph, Margulies and Richman, Minneapolis, Minnesota, 
  statement and attachments......................................   254
McGarrah, James M., Rear Admiral, Director of Administrative 
  Review of the Detention of Enemy Combatants, Department of the 
  Navy, Washington, D.C., statement..............................   282
Schulhofer, Stephen J., Professor, New York University School of 
  Law, New York, New York, statement.............................   287
Swift, Charles D., Lieutenant Commander, Defense Counsel, Office 
  of Chief Justice Counsel, Department of Defense, Washington, 
  D.C., statement and attachment.................................   302
Wiggins, J. Michael, Deputy Associate Attorney General, 
  Department of Justice, Washington, D.C., statement.............   322



                        WEDNESDAY, JUNE 15, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Kyl, DeWine, Sessions, Graham, 
Cornyn, Coburn, Leahy, Kennedy, Biden, Kohl, Feinstein, 
Feingold, and Durbin.

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. It is 
9:30 on the button. We will proceed with the Judiciary 
Committee hearing on the question of detainees.
    The starting point of this issue is the Constitution of the 
United States. Under Article I, section 8, clauses 10 and 11, 
the Constitution explicitly confers upon Congress the power 
``to define and punish offenses against the laws of nations'' 
and ``to make rules concerning captures on land and water.''
    The executive branch issued on November 13, 2001, under the 
caption Presidential Executive Military Order, rules 
promulgated for detention, treatment, and trial of certain non-
citizens in the war against terrorism. Then on July 7, 2004, 9 
days after a trilogy of Supreme Court cases, the Department of 
Defense created Combat Status Review Tribunals.
    The focus of today's hearing is going to be on the 
procedures used with detainees. We do not have within the scope 
of this hearing the issues of torture or mistreatment. The 
subject we have today is very, very complicated in and of 
itself, and there will be sufficient time for later hearings on 
other related matters.
    The Supreme Court of the United States on June 28th of 2004 
came down with a complex series of opinions in three cases, one 
of which only has a plurality opinion, which means four 
Justices agreed on an opinion so there is not an opinion of the 
Court. The two others were five-person majority opinions, and a 
total of some 13 opinions were issued in all, and I think any 
fair analysis would say that we have a crazy quilt which we are 
dealing with here, and that has been supplemented by three 
opinions in the United States District Court for the District 
of Columbia, two of which have said detainees' rights are being 
violated, one opinion saying detainees' rights are being 
upheld. They have been sitting in the court of appeals for a 
very long period of time. They were decided, one before 2004 
ended and the other two in early 2005, and the Judiciary 
Committee is going to consider--a touchy subject, but we are 
going to consider putting time limits on the disposition of 
these highly sensitive cases. Judges do not like that. We do 
not want to interfere with their judicial independence. But the 
Congress does have the authority to establish time parameters, 
which we have done in a number of situations.
    The only unifying factor coming out of the multitude of 
opinions by the Supreme Court of the United States was that it 
is really the job of the Congress, and I think they made a 
pretty good case for that. Senator Durbin and I introduced 
legislation in 2002, and Congressman Frank introduced 
legislation, but none of it has gone anywhere, and there is a 
real question as to why Congress has not handled it. It may be 
that it is too hot to handle for Congress. It may be that it is 
too complex to handle for Congress. Or it may be that Congress 
wants to sit back as Congress, we, customarily do awaiting some 
action by the court no matter how long it takes, Plessy v. 
Ferguson in 1896 to Brown v. Board of Education in 1954. But, 
at any rate, Congress has not acted, and that is really what 
the focus of our hearing is today, as to what ought to be done.
    Justice Scalia wrote in an opinion, joined by the Chief 
Justice and Justice Thomas, ``Congress is in session. If it had 
wished to change Federal judges' habeas jurisdiction from what 
this Court held that to be, it could have done so.'' Which is 
certainly true. Then Justice Scalia turned his wrath on his 
colleagues in the Supreme Court of the United States, saying, 
``And it could have done so by intelligent revision of the 
statutes instead of today's clumsy, countertextual 
interpretation that confers upon wartime prisoners greater 
rights than domestic detainees.''
    I would ordinarily stop at 5 minutes, but this is a complex 
subject. I am going to take a very small amount of extra time, 
    Then Justice Scalia went on to say, in certainly not 
subdued language, ``For this Court to create such a monstrous 
scheme in time of war and in frustration of our military 
commanders' reliance upon clearly stated prior law is judicial 
adventurism of the worst sort.'' We constantly complain that 
the Court makes the law, and here we are having sat back with 
our constitutional mandate pretty clear.
    In more circumspect language, Justice Stevens went on to 
make a point which is worth emphasizing here this morning. This 
opinion was joined in by Justice Stevens, in dissent in Hamdi, 
which may account for Justice Scalia's more temperate language. 
He wrote that he could not determine the ``Government security 
needs'' or the necessity to ``obtain intelligence through 
interrogation,'' concluding, ``It is far beyond my competence 
or the Court's competence to determine that, but it is not 
beyond Congress'. If civil rights are to be curtailed during 
wartime, it must be done openly and democratically, as the 
Constitution requires, rather than by silent erosion through an 
opinion of the Court.''
    As noted in the Congressional Research Service, the Supreme 
Court decisions leave many questions unanswered for lower 
courts: the definition of the term ``enemy combatant,'' the 
scope of legal procedures due persons designated as such. Would 
habeas corpus be foreclosed if a detainee is convicted by a 
military commission? Would a detainee have access to United 
States courts where held abroad by the United States military 
in locations where the United States does not exercise full 
jurisdiction and control? And then in Judge Green's opinion--
and I will not take much more time--Judge Green puts on the 
line many, many other critical issues which have yet to be 
    So that it seems to me that Congress has its work cut out 
for it as we look at a very, very tough issue on how we handle 
detainees. That is a very abbreviated statement of what I would 
like to say.
    Senator Leahy?

                        STATE OF VERMONT

    Senator Leahy. Mr. Chairman, I think it is a valuable one 
because it has been well over 3 years since the administration 
began to hold detainees at Guantanamo. The first batch of 20 
arrived January 2002. There are now more than 500 there, 
although nobody seems to be able to tell us what the exact 
number is. So this is a welcome hearing for us to decide what 
we should do, and I commend the Chairman for holding it.
    I think the amount of interest around the country in the 
hearing shows how the American people feel. This policy on 
detainees is clearly not working. We seem to have a difficulty 
in getting a coherent theory from the administration how to 
    In 2001, military commissions were defended by the then-
Attorney General as tribunals that ``can dispense justice 
swiftly, close to where our forces may be fighting, without 
years of pre-trial proceeding or post-trial appeals.'' Now, 
that was 3 years ago. But far from assuring swift justice, we 
have not seen any justice. There has not been a single military 
commission complete a hearing or convict a suspected terrorist 
in those 3 years.
    Until a year ago, the administration seemed to hold tight 
to the notion that by detaining prisoners at Guantanamo Bay, a 
location where the prisoners had no right of access to the 
courts, it could shield itself from judicial challenge. But the 
Supreme Court in Rasul v. Bush rejected that legal theory.
    Now we hold to the theory that they will be there until the 
end of the war on terror. All of us know that war will not end 
in our lifetime.
    What has become clear is that the policies were poorly 
reasoned and apparently extremely short-sighted. The 
administration's insistence on unilateralism, a tendency and a 
problem that has colored and undermined so many of the 
policies, has led to poor decisions and poor practices and 
detention policies as well. What they have said to us from the 
start is, ``Trust us. Trust us that we know the law and that we 
will comply with it. Trust us to treat detainees humanely, in 
accordance with our laws and treaties. Trust us that Guantanamo 
is going to make Americans safer.''
    Now, 3 years later, about the only thing we know for 
certain is that trust may well have been misplaced. Guantanamo 
Bay is an international embarrassment to our Nation, to our 
ideals, and it remains a frustrating threat to our security. 
Our great country, America, was once viewed as a leader in 
human rights and the rule of law, and justly so. But Guantanamo 
has undermined our leadership and has damaged our credibility. 
It has drained the world's good will for America at alarming 
    I was recently at a meeting of NATO parliamentarians. These 
are countries that are most closely allied with America. They 
have been our strongest supporters. The first question each of 
them asked is: What about Guantanamo? What about Afghanistan 
and Iraq? And they tell us--and I must agree--that these are 
not the policies of a great and just nation. They are not the 
American system of justice.
    Now, the administration did not want to have Congress as a 
partner in the war on terror and insisted on acting 
unilaterally. From the start of combat in Afghanistan in 
October 2001, I urge President Bush to work with Congress to 
fashion appropriate rules and procedures for detaining and 
punishing suspected terrorists. That was not a partisan thing. 
Our Chairman, Senator Specter, did the same. We both noted at 
the time that Government is at its strongest when the executive 
and legislative branches of Government act in concert. That was 
    So now I say, What is the administration's plan for 
Guantanamo Bay, assuming there is a plan? What does the 
administration intend to do with more than 500 detainees still 
imprisoned there? How many are going to be released and when? 
How many are going to be charged and tried, and win?
    The administration says that these detainees pose a threat 
to the safety of Americans. The Vice President said that the 
other day. If that is true, if they pose a threat to us, then 
there has to be evidence to support that, or the administration 
would not tell the world that. And if there is evidence, then 
let's prosecute them. Let's bring the evidence forward.
    But we also know that some of these detainees have been 
wrongly detained, and I suspect that there are others who have 
not been released that have weak evidence at best. If they are 
being detained in accordance with Geneva Conventions, that is 
one thing. But that is not it. This idea of changing the focus, 
producing props of chicken dinners and such, seeming to argue 
this is more a Club Med than a prison, let's get real. These 
people have been locked up for 3 years, no end in sight, and no 
process to lead us out of there.
    Guantanamo Bay is causing immeasurable damage to our 
reputation as a defender of democracy and a beacon of human 
rights around the world. I am proud of what our Nation has 
accomplished. I want us to be that beacon of human rights. But 
we are not being it with Guantanamo. We do not have a plan to 
repair the damage. Congress has abdicated its oversight 
responsibilities for too long. I think it is time for Congress 
to demand a way out.
    Mr. Chairman, I applaud you for holding these hearings.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Leahy.
    We turn now to our first witness, who is Rear Admiral James 
McGarrah. He has a very, very distinguished record, which will 
be incorporated into our hearing record. But suffice it to say 
for these purposes he has been designated by the Secretary of 
the Navy as Director of the Administrative Review of the 
Detention of Enemy Combatants, going right to the heart of our 
    Admiral, we have a standard policy of 5 minutes for opening 
statements. All of the statements will be made a part of the 
record, but that leaves us the maximum amount of time for 
questions and answers by members of the Committee, and you can 
see today that this is a hearing where there is a lot of 
interest and there will be a lot of questions. Thank you for 
joining us, Admiral McGarrah, and we appreciate the Department 
of Defense providing you and General Hemingway as experts, and 
the other witnesses who are here today, and we look forward to 
your testimony.


    Admiral McGarrah. Senator Specter, Senator Leahy, members 
of the Committee, I am Admiral Jim McGarrah, Civil Engineer 
Corps, United States Navy, and I really do appreciate the 
opportunity to be here today.
    In May of last year, Deputy Secretary of Defense Paul 
Wolfowitz named Secretary of the Navy Gordon England the 
Designated Civilian Official, or DCO, to supervise the process 
to review annually the cases of all detainees held under DOD 
control at the naval base at Guantanamo Bay, Cuba. Secretary 
England in turn appointed me as the Director of the Office for 
the Administrative Review for the Detention of Enemy 
Combatants, the organization that he charged with carrying out 
this review process. At the time we solicited input from the 
international Committee of the Red Cross, from non-governmental 
organizations, and from Ambassadors of the countries with 
detainees at Guantanamo Bay, and then worked across all U.S. 
Government agencies to develop a rigorous and fair review 
process called the Administrative Review Board, or ARB. The 
purpose of the ARB process is to assess annually whether each 
enemy combatant at Guantanamo continues to pose a threat to the 
United States or its allies, or whether there are other factors 
that would support the need for continued detention. Based on 
this assessment, the ARB panel can recommend to Secretary 
England in his role as DCO that individual detainees be 
released, continue to be detained, or be transferred with 
conditions to their country of nationality. Secretary England, 
as the DCO, is the final decision maker for this process.
    While the ARB procedures were being developed last summer, 
the U.S. Supreme Court issued three rulings related to detained 
enemy combatants. Among other things, the Court in one of those 
cases held that Federal courts have jurisdiction, under the 
Federal habeas corpus statute, to hear challenges to the 
legality of the detention of Guantanamo Bay detainees. In 
another one of those cases, a plurality of the Court cited 
Section 1-6 of Army Regulation 190-8 as an example of military 
regulations that might suffice to satisfy the due process 
requirements that the plurality indicated would apply to a U.S. 
citizen held as an enemy combatant in the United States. In 
light of those decisions, the Deputy Secretary of Defense 
established the Combatant Status Review Tribunal, or CSRT, 
process to assess formally whether each detainee was properly 
detained as an enemy combatant and to permit each detainee the 
opportunity to contest the enemy combatant designation. The 
CSRT process was based on Army Regulation 190-8, which provides 
policy, procedures, and responsibilities for handling of 
prisoners of war and other detainees. Specifically, it outlines 
provisions for tribunals that exceed the requirements of 
tribunals that implement Article 5 of the 1949 Geneva 
Convention, which requires a competent tribunal to determine 
the status of belligerents in cases where any doubt arises as 
to whether a belligerent satisfies the requirements for 
prisoner of war status.
    The CSRT is a one-time process for each detainee and 
provides them opportunities:
    The opportunity for review and consideration by a neutral 
decision-making panel composed of three commissioned military 
officers sworn to execute their duties faithfully and 
impartially. The tribunals make their decisions by majority 
vote based on preponderance of evidence;
    The opportunity to attend all open portions of the 
    The opportunity to call witnesses on his behalf, if those 
witnesses are relevant and reasonably available;
    The opportunity to question witnesses called by the 
    The opportunity to testify on his own behalf if he desires;
    The opportunity to receive assistance of an interpreter, 
when necessary; and
    The opportunity freely to decline to testify.
    The CSRT process also provides more process and protections 
than Army Regulation 190-8:
    The Detainee is given an opportunity to receive assistance 
from a military officer to ensure he understands the process 
and the opportunities available, and to prepare for the 
    The CSRTs contain express qualifications to ensure the 
independence and lack of prejudgment of the tribunal members.
    The CSRT Recorder is obligated to search Government files 
for evidence suggesting the detainee is not an enemy combatant.
    In advance of the hearing, the detainee is provided with an 
unclassified summary of the evidence supporting his enemy 
combatant designation.
    And the result of every CSRT is automatically reviewed by a 
higher authority, who is empowered to return the record to the 
tribunal for further proceedings, if appropriate.
    Secretary England appointed me as the Convening Authority 
for this process. The tribunal panels were the decision makers 
in this process. In my Convening Authority review, I could 
either approve the panel's decision or I could return it for 
further deliberation. In less than 6 months, tribunal hearings 
were conducted on all 558 detainees under Department of Defense 
control at Guantanamo Bay. Of those 558 cases heard, the CSRT 
panels determined that 520 of those detainees were properly 
classified as enemy combatants and that 38 detainees no longer 
met the criteria for enemy combatant designation. Those found 
to no longer meet the criteria were processed for release. 
Twenty-three have been released, and the Department of Defense 
continues to work closely with Department of State to effect 
the release of the remaining 15.
    The first ARB was conducted in December of 2004. The ARB 
process is ongoing, with the expectation that we will complete 
the first annual review for all eligible detainees by the end 
of this calendar year. It provides each eligible detainee with 
    Chairman Specter. Admiral McGarrah, could you summarize, 
    Admiral McGarrah. I will. The ARB process is intended to be 
similar to the CSRT process in that it is rigorous and fair and 
will assess on an annual basis whether or not the detainees 
continue to pose a threat to the U.S. or its allies. The DCO is 
the decision maker in that process and can decide to continue 
to detain, to release, or to transfer.
    Because of the highly unusual nature of the global war on 
terror and because we do not want to detain any person longer 
than is necessary, we have taken this unprecedented and 
historic action to establish this process to permit enemy 
combatants to be heard while a conflict is ongoing.
    Mr. Chairman, thank you again for the opportunity to 
provide this information. I would ask that the remainder of my 
remarks be submitted to the record, and I am happy to answer 
any questions that you or the Committee members might have 
regarding the CSRT process or the ARB.
    [The prepared statement of Admiral McGarrah appears as a 
submission for the record.]
    Chairman Specter. All of your statement will be made a part 
of the record, as will the full statements of all of the 
    We will turn now to General Thomas L. Hemingway. He is the 
Legal Advisor to the Appointing Authority in the Department of 
Defense Office of Military Commissions. General Hemingway's 
responsibility covers providing legal advice to the Appointing 
Authority on referral of charges, questions that arise during 
trial, and other legal matters concerning military commissions.
    Thank you for coming in this morning, General, and we look 
forward to your testimony.


    General Hemingway. Thank you, Mr. Chairman, members of the 
Committee. I am pleased to discuss the operations of our Office 
of Military Commissions.
    America is at war. It is not a metaphorical war. It is as 
tangible as the blood, the rubble that littered the streets of 
Manhattan on September 11, 2001. The reality of this war could 
be seen in the faces of those who stood in stark horror as they 
saw helpless, innocent people fall and jump to their deaths 
from the Twin Towers. In response to the attacks on the United 
States on September 11, 2002, the President established 
military commissions to try those non-citizen members of al 
Qaeda and other persons engaged in specified terrorist 
activities who are alleged to have committed violations of the 
laws of war and related offenses.
    The use of military commissions predates the formation of 
our Republic. Since the Revolutionary War, the United States 
has used military commissions to try enemy combatants for law 
of war violations. In the Mexican-American War, during the 
Civil War, following the Civil War, during and after World War 
II, military commissions were used to try enemy combatants for 
violations of the laws of war. In the President's Military 
Order establishing military commissions, he mandated that the 
accused shall be afforded a full and fair trial. The President 
also determined that the Federal Rules of Evidence are not 
practicable for military commissions given the nature of this 
conflict. This determination is based on the unique factors 
present in conducting judicial proceedings against suspected 
warm criminals at a time when the United States is actively 
engaged in an ongoing armed conflict. Instead of the Federal 
Rules of Evidence, military commissions have adopted the 
internationally accepted standard of admissibility of 
evidence--probative value.
    The President's Military Order focuses on the unique 
factors of the current ongoing hostilities and affirms that 
national security interests require the continued application 
of U.S. national security laws in developing commission 
instructions and orders consistent with the accused's right to 
a fair trial. These orders, instructions, and regulations 
afford an accused the following rights: the presumption of 
innocence; trial before an impartial and independent panel of 
three to seven officers; notification of charges in language 
understood by the accused; call witnesses and present evidence; 
cross-examine witnesses and examine evidence; election not to 
testify with no adverse inference; appointment of military 
counsel at no cost to the defendant and the right to hire a 
civilian counsel at no expense to the government; privileged 
communications with defense counsel; adequate support and 
resources to defense counsel; appointment of interpreters and 
translators; open proceedings, except as absolutely necessary 
to protect national security; proof of guilt beyond a 
reasonable doubt; review of the record of trial by a three-
member review panel.
    The rules of evidence and procedure established for trials 
by military commission compare favorably to those being used in 
the International Criminal Tribunal for Rwanda and the 
International Criminal Tribunal for the former Yugoslavia. 
These rules are consistent with our National commitment to 
adhere to the rule of law.
    The Office of Military Commissions has taken key steps in 
moving the commission process forward. To date, the President 
has determined that 12 detainees currently at Guantanamo are 
subject to his order. The Appointing Authority, Mr. John D. 
Altenburg, has approved charges against four accused and 
referred these charges to military commissions for trial. Those 
trials commenced late in the summer of 2004. The Office of 
Military Commissions has been working diligently to convene 
military commissions; however, the trials are stayed pending an 
appellate court decision in the case of Mr. Hamdan. Military 
and civilian counsel for Mr. Hamdan brought an action in the 
United States District Court to review the legality of trial by 
military commissions. The district court affirmed the legality 
of military commissions to try violators of the law of war, and 
a review panel has an appeals mechanism. However, the court 
raised concerns about the commission process whereby an accused 
may be excluded from the hearing to protect classified and 
protected information. Because this protection is essential to 
the continued effectiveness in our current war on terror, the 
Government has appealed this ruling. The delays to the 
commission process are directly attributable to the exercise of 
the accused's ability to challenge that process in Federal 
courts. While the appeal is pending, investigations and 
submissions of charges against additional accused continue.
    This is the first time since World War II that the United 
States has had a need to convene military commissions. While it 
is important to move quickly back to trial, the Office of 
Military Commissions' movement forward is measured with full 
awareness and consideration of the rights of an accused and the 
needs of our Nation.
    The ongoing global war on terrorism continues to pose many 
unique challenges in this asymmetrical battlefield. Neither the 
United States nor the international community contemplated a 
non-state organization having the capability to wage war on a 
global scale. Military commissions are the appropriate forum to 
preserve safety, protect national security, and provide for 
full and fair trials consistent with our standards and those of 
the international community.
    Thank you, Mr. Chairman.
    [The prepared statement of General Hemingway appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, General Hemingway.
    Our next witness is Mr. J. Michael Wiggins, Deputy 
Associate Attorney General, having the responsibility for 
overseeing the Department of Justice Civil Division, civil 
rights and criminal matters within the civil litigating 
divisions covering the areas of concern here. His full resume 
of a very distinguished record will be included in our record 
overall, but we appreciate your coming in, Mr. Wiggins, and 
look forward to your testimony. The floor is now yours.


    Mr. Wiggins. Mr. Chairman, members of the Committee, I am a 
Deputy Associate Attorney General at the Department of Justice, 
and I am pleased to discuss the work of the Department and the 
current status of litigation involving the U.S. Government's 
detention of enemy combatants at Guantanamo Bay, Cuba, as part 
of the ongoing war on terror.
    In response to the terrorist attacks of September 11, 2001, 
the President dispatched the U.S. Armed Forces to seek out and 
subdue the al Qaeda terrorist network and the Taliban regime 
and others that had supported it. In the course of those 
hostilities, the U.S. captured or took custody of a number of 
enemy combatants. As in virtually every other armed conflict in 
the Nation's history, the military has determined that many of 
those individuals should be detained during the conflict as 
enemy combatants. Such detention is not for criminal justice 
purposes and is not part of our Nation's criminal justice 
system. Rather, detention of enemy combatants serves the vital 
military objectives of preventing captured combatants from 
rejoining the conflict and gathering intelligence to further 
the overall war effort and to prevent additional attacks 
against our country. Some of those individuals are being held 
at Guantanamo Bay, Cuba.
    Each Guantanamo Bay detainee has received a formal hearing 
before a Combatant Status Review Tribunal, a CSRT, for 
determining whether that individual remains properly classified 
as an enemy combatant.
    During the CSRT proceedings, each detainee received 
substantial procedural protections. In addition, a subset of 
combatants have been designated for trial by military 
commission. Since the founding of our Nation, the United States 
military has used military commissions during wartime to try 
offenses against the laws of war. The Supreme Court has 
repeatedly upheld the use of these military commissions.
    Against this backdrop of legal authority and historic 
practice, on November 13, 2001, the President ordered the 
establishment of military commissions to try a subset of the 
detainees for violations of the laws of war and other 
applicable laws. Under the military order, a military 
commission may not exercise jurisdiction over a detainee unless 
certain preconditions have been met, always including status as 
an alien and generally including a determination of connection 
to the violent enemies of the United States and a specific 
violation of the laws of war.
    On June 28, 2004, the Supreme Court issued a trio of 
decisions that defined the landscape for future litigation 
involving military detention of enemy combatants: Rasul, Hamdi, 
and Padilla. In the aftermath of the decision in Rasul, a large 
number of habeas petitions have been filed on behalf of 
Guantanamo Bay detainees. As of today, approximately 95 cases 
have been filed on behalf of approximataly 200 detainees.
    While the Government has taken unprecedented steps to allow 
private lawyers access to these detainees and has produced 
factual returns consisting of the records of the CSRTs, 
including classified information, it has moved to dismiss 
Guantanamo Bay detainee habeas cases on the grounds that alien 
enemy combatants detained abroad lack rights under the United 
States Constitution. And even if Guantanamo Bay detainees do 
enjoy some rights under the Constitution, the Due Process 
Clause, the CSRTs provide all the process that is required. 
Litigation in this area presents a number of important issues. 
The first is whether the Due Process Clause of the Fifth 
Amendment is applicable to aliens captured abroad and detained 
at Guantanamo Bay. The Government believes that a long line of 
Supreme Court and D.C. Circuit precedents foreclose such 
    The second issue is, assuming that aliens detained by the 
military at Guantanamo Bay enjoy some constitutional rights, 
what is the scope of those rights and how are they to be 
implemented in a judicial proceeding in the United States 
courts? Again, it is crucial to remember that preventive 
detention of enemy combatants has never been thought of as a 
criminal matter in which a full-blown trial would be held.
    The CSRTs exceed the procedural requirements that were laid 
out in Hamdi for detention of citizens. It surely cannot be the 
case that non-citizen enemy combatants whose only connection to 
the United States is membership in a terrorist organization 
dedicated to destroying it are entitled to more process than 
that which the Constitution requires for citizens.
    As for the military commissions, the Government believes 
that the judge who enjoined them committed several legal 
errors, and we hope that the trials before military commissions 
for detainees will be permitted to proceed after the appeal is 
resolved. The President's Military Order is fully consistent 
with the Constitution, treaties, and laws of the United States 
and the regulations established to govern the commissions 
reflect proper balancing of the twin objectives of protecting 
the security of the U.S. and providing captured fighters a full 
and fair trial.
    In sum, the unprecedented situation created by Rasul in 
which alien enemy combatants detained at Guantanamo Bay by the 
military have been permitted to pursue habeas claims against 
their custodians in the United States courts has posed a number 
of challenges and a number of substantial legal issues that 
await resolution by the courts.
    At this time, Mr. Chairman, I would be happy to address any 
questions you or other members of the Committee may have.
    [The prepared statement of Mr. Wiggins appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Wiggins.
    Our final witness on this panel is Inspector General of the 
Department of Justice. Mr. Glenn A. Fine has had that position 
since the year 2000. We will include in the record his 
distinguished resume.
    We have asked Mr. Fine to come in today. Although not 
directly related to Guantanamo, it does related to detainees. 
And there is a concern about the 723 aliens who were detained 
right after September 11th with respect to the basis for their 
detention. And here, again, the Committee is fully aware that 
you do not have to have the evidence to proceed with probable 
cause for a prosecution or any necessarily high standard, but 
some reason for detention which has some overlapping import 
with respect to the detainee issue generally. Again, very 
flexible standards for what you need, depending upon the risks 
involved, and we know what those risks are for terrorism. But 
we have asked Mr. Fine to come in on that subject where we did 
have a hearing in 2003, but the Bureau of Prisons has been 
investigating the matter for a year and a half, and we thought 
this would be a good occasion for this Committee to be informed 
as to what is happening now.
    Thank you for joining us, Mr. Fine, and we look forward to 
your testimony.

                   JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Mr. Chairman, Senator Leahy, and members of the 
Committee, thank you for inviting me to testify at this 
morning's hearing regarding two Office of the Inspector General 
reports which examined the treatment of aliens detained on 
immigration charges in connection with the terrorism 
investigations after the September 11th attacks.
    My written statement summarizes the findings and 
recommendations from the OIG's June 2003 detainee report as 
well as our December 2003 supplemental report on the treatment 
of detainees at the Metropolitan Detention Center in Brooklyn, 
New York.
    Given the focus of today's hearing, my testimony will 
highlight the major findings from these reports that relate to 
due process issues for these immigration detainees.
    The OIG determined that the Department of Justice detained 
762 aliens on immigration charges in connection with its 
terrorism investigation in the first 11 months after the 
September 11th attacks. Although our report recognized the 
difficulties and challenges that confronted the Department in 
investigating the attacks, we found significant problems in how 
these detainees were treated.
    The FBI pursued thousands of leads in the terrorism 
investigation ranging from information obtained from a search 
of the hijackers' cars to anonymous tips called in by people 
who were suspicious of Muslim or Arab neighbors who kept odd 
    Outside of New York, the FBI attempted to screen out cases 
in which aliens showed no indication of any connection to 
terrorism. We found that, in contrast, the FBI in New York did 
not attempt to distinguish between aliens who were suspected of 
having a connection to the September 11th attacks or terrorism 
in general from aliens who were simply encountered coincidental 
to a terrorism lead.
    We also found that after their arrests, many of these 
September 11th detainees did not receive timely notice of the 
charges against them. These delays affected the detainees' 
ability to understand why they were being held or to obtain 
legal counsel.
    With regard to the detainees' conditions of confinement, 
our review found serious problems in their treatment at the 
Metropolitan Detention Center in Brooklyn. We found that the 
Bureau of Prisons imposed a total communications blackout on 
the detainees for several weeks after their initial detention 
and then designated them as witness security inmates, which 
frustrated efforts by the detainees' attorneys, families, and 
even law enforcement officials to determine where they were 
being held.
    The MDC's restrictive and inconsistent policies on 
telephone access also prevented many detainees from obtaining 
legal counsel in a timely manner. The MDC permitted detainees 
only one legal call per week, and calls that resulted in a busy 
signal or calls answered by voice mail counted as their single 
call. We found that many detainees could not obtain counsel for 
months after their arrest.
    We also found that MDC staff videotaped and audiotaped some 
detainees' meetings with their attorneys. In addition, we found 
that some correctional officers physically and verbally abused 
some September 11th detainees at the MDC. While the detainees 
were not brutally beaten, some officers slammed detainees 
against the wall, twisted their arms and hands in painful ways, 
punished them by keeping them restrained for long periods, and 
made slurs and verbal threats against them.
    We recommended that the BOP consider taking disciplinary 
action against approximately 15 MDC employees. Yet more than 18 
months after our report, the BOP still has not imposed 
discipline on any individual for any action we described in our 
report. In my view, this delay is inappropriate and 
    While I am told that the BPO's review of these matters is 
now in its final stages, I urge the BOP to complete its review 
expeditiously and take appropriate action.
    In addition to recommending discipline for individuals, our 
two reports made a series of recommendations to address 
systemic problems in how the Department, the FBI, and the BOP 
handle immigration detainees. We are pleased that the 
Department, the FBI, and the BOP have agreed with most of our 
recommendations and have taken steps to implement them. 
However, two recommendations still have not been sufficiently 
address. The first is the BOP's delay in implementing 
discipline for any MDC employees, which I have discussed. The 
second involves our recommendation that the Department of 
Justice and the Department of Homeland Security enter into a 
memorandum of understanding to formalize policies, 
responsibilities, and procedures for managing a national 
emergency that involves alien detainees.
    Finally, one other matter that I wanted to note for the 
Committee is the ongoing OIG review that is examining FBI 
employees' observations and actions regarding alleged abuse of 
military detainees in Guantanamo Bay, Abu Ghraib, and 
Afghanistan. The OIG is examining whether FBI employees 
participated in any incident of detainee abuse in military 
facilities at these locations, whether FBI employees witnessed 
incidents of abuse, how FBI employees reported any observations 
of abuse, and how these reports were handled by the FBI. We 
recognize these are critical issues, and we have allocated 
substantial resources to conducting this important ongoing 
    I thank the Committee for inviting me to testify about 
these OIG reviews, and I would be pleased to answer any 
    [The prepared statement of Mr. Fine appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Fine.
    We now turn to the questioning by members of the Committee, 
which, in accordance with our tradition, is 5 minutes.
    Before proceeding to the first question, just a comment or 
two about some consideration which had been given by the 
Committee to using the Foreign Intelligence Surveillance Court 
as the court to consolidate these cases. Regrettably, an early 
draft was circulated and has led to a lot of speculation as to 
what might be done on that, and we are not going to proceed 
with the FISA Court. The initial thought had been that the 
Foreign Intelligence Surveillance Court had a lot of experience 
with classified information. And had we gone in that direction, 
it would not have been a secret court, but there is such an 
overtone of secrecy about FISA that it sounds too much like a 
star chamber. But we are going to take a look at consolidating 
these matters so we do not have a proliferation of opinions by 
the district court and the very long delays to the circuit 
court and the very long delays to the Supreme Court as well.
    Turning now to the first question, I note, Admiral 
McGarrah, that among those who have been released from 
Guantanamo, custody has been given up after the detainees sign 
pledges renouncing violence and promising not to bear arms 
against the United States forces or its allies. I note that 
Vice President Cheney made a speech earlier this week 
identifying some ten Guantanamo detainees who had been found in 
combat. Other estimates have gone as high as 25, and I think we 
really do not know the number. And while procedural due process 
is obviously important, we ought to be as sure as we can what 
steps are being taken so that we do not release detainees from 
Guantanamo who turn up on battlefields killing Americans. And 
what is the value of a promise not to bear arms against the 
United States or its allies?
    Admiral McGarrah. Senator, the process that I oversee, the 
CSRT process, is a rigorous process to look at all the evidence 
in the Government's possession and to make a determination as 
to enemy combatant status. It is the most recent and the most 
formalized review process and follows a number of prior 
processes that made prior determinations. The released that you 
referred to were made under the prior processes, and so I am 
not aware of the details--
    Chairman Specter. Are we not now releasing detainees on 
their promise not to go back to war? It does not seem to me 
that kind of a promise is worth anything. Is it?
    Admiral McGarrah. I believe that that is one of the 
considerations that is in the decision-making process. Once 
these decisions are made--
    Chairman Specter. Well, why? What is the value of a 
detainee's promise not to go back to war? What indicators do we 
have--this goes to the point which a number of the opinions, 
especially Judge Green picks up, as to what is the information 
that these people are connected with al Qaeda. And she cites in 
her opinion dialogue in the court where there is an assertion 
that this person is a member of al Qaeda, and the person comes 
back and says, ``Well, who says I am a member of al Qaeda? I am 
    I think you have to have the tribunal make that decision 
beyond any question, and you cannot accept a blanket denial. 
And the question is what you know, and we will obviously get 
into that in some detail. But where you have these detainees, 
there is presumptively some basis for having them to start 
with. And I am at a loss to see why there would be any weight 
attached to a promise not to go back to war.
    Admiral McGarrah. Yes, sir. The process examines all the 
evidence and information available within the U.S. Government, 
in the Government's possession, and it makes a determination 
based on the preponderance of that evidence. A statement of 
that sort in and of itself would not necessarily be sufficient 
for a determination--
    Chairman Specter. Admiral, would you supplement your answer 
with the other factors? I want to come to General Hemingway 
with a question, and my time is almost up, and I intend to 
observe my time limit here.
    General Hemingway, Article 5 of the Third Geneva Convention 
provides that, ``Should any doubt arise as to whether persons 
having committed a belligerent act and having fallen into the 
hands of the enemy, such a person shall enjoy the protection of 
the present Convention until such time as their status has been 
determined by a competent tribunal.'' The court then concluded 
that the Combat Status Review Tribunal was not established for 
that purpose. And the Government said, well, the President has 
decided that these are al Qaeda and not prisoners of war under 
Geneva, and the court came back and said, ``The President is 
not a tribunal,'' which obviously the President is not. So 
where you have the President's conclusion, weighty as it is 
under our view, what do you anticipate with respect to 
compliance with the Geneva tribunal requirement?
    General Hemingway. Senator, I think that is a question that 
is more appropriately addressed to the Department of Justice, 
but as far as the military commissions are concerned, I think 
that we are in full compliance with the Geneva Convention in 
the manner in which we are conducting them. We are holding 
people who have been caught on the battlefield, given the broad 
definition of ``battlefield,'' and we are holding them 
    Chairman Specter. Well, my time has expired, and I am going 
to yield to Senator Leahy. They have started the vote. I am 
going to excuse myself and go vote, but I will be back as 
promptly as I can. So let's retain the witnesses in place, and 
we are going to try to proceed even through the votes we have 
this morning.
    Senator Leahy. Tell them I am on my way over. I want to 
finish mine first.
    Chairman Specter. Okay. I will tell them you are on your 
    Senator Leahy. Let me ask, General, the Department of 
Defense says there are approximately 520 detainees currently at 
Guantanamo. How many are there? I do not want an approximate 
number. Give me the actual number.
    General Hemingway. Senator, that is outside my scope of 
    Senator Leahy. It seems to be outside the scope of 
everybody's responsibility at DOD. We ask that question of 
everybody from the Secretary on down. Is there anybody who 
knows? Give me the name of the person who knows how many are 
being detained.
    General Hemingway. Well, I would suggest that you direct 
your question to the Secretary of Defense.
    Senator Leahy. The Secretary of Defense does not seem--we 
get an approximate from the Secretary of Defense. Is there 
anybody else other than the Secretary of Defense--because he 
will not give us an answer, you will not give us an answer. Is 
there anybody who knows the number?
    General Hemingway. I have given you my best answer, 
    Senator Leahy. Give me your best answer.
    General Hemingway. I have.
    Senator Leahy. How many do you think are there?
    General Hemingway. In excess of 500.
    Senator Leahy. Are any of the detainees being held at 
Guantanamo in the custody of Government agencies other than the 
    General Hemingway. Not to my knowledge.
    Senator Leahy. None being held in the custody of Government 
agencies such as the CIA?
    General Hemingway. Senator, not to my knowledge. You would 
have to direct your questions in that regard to some other 
    Senator Leahy. How many of the detainees were not captured 
during combat in Afghanistan and Iraq but were picked up from 
other battlefields, such as Bosnia?
    General Hemingway. As I say, that is outside the scope of 
my responsibility. I have not been given that information.
    Senator Leahy. Admiral, can you answer any of these 
questions I have asked?
    Admiral McGarrah. Sir, I do not have the specific numbers, 
but there were some that were picked up outside Afghanistan.
    Senator Leahy. Where?
    Admiral McGarrah. I do not have the locations at my 
fingertips, but I can get back to you on that, sir.
    Senator Leahy. Other than Afghanistan or Iraq.
    Admiral McGarrah. Sir, the Guantanamo detainees do not 
include detainees from Iraq. We are talking about the global 
war on--
    Senator Leahy. Okay. Do you have any idea what these other 
countries are? You will supply it for the record?
    Admiral McGarrah. Yes, sir. We will get back to you.
    Senator Leahy. Countries other than Afghanistan.
    Admiral McGarrah. We will get back to you, sir.
    Senator Leahy. But there were countries other than 
    Admiral McGarrah. Yes, sir, there were.
    Senator Leahy. Do you know if there is anybody being held 
there in custody by a Government agency other than DOD?
    Admiral McGarrah. No, sir, I am not aware of any held 
outside DOD control.
    Senator Leahy. Mr. Wiggins?
    Mr. Wiggins. I cannot answer the question.
    Senator Leahy. You cannot answer because you do not know?
    Mr. Wiggins. I do not know, Senator.
    Senator Leahy. Okay. Mr. Fine?
    Mr. Fine. I do not know, Senator Leahy.
    Senator Leahy. Okay. General Hemingway, you said earlier 
the Attorney General has defended military commissions on the 
ground they could deliver swift justice. That was back in 2001. 
Of course, now it has been nearly 4 years since 9/11. There has 
not been a single trial that has been completed. I realize 3 
years after that, in November 2004, a Federal court declared 
the current regulations for military commissions unlawful, and 
you are seeking to overrule that.
    Why weren't any prosecutions begun for nearly 3 years? I 
mean, we were told that this would be swift and it would be the 
quickest way to go, but for 3 years, nothing.
    General Hemingway. Senator, I think that we have moved with 
considerable dispatch. A lot of people think that all we did 
was dust off World War II procedures. We--
    Senator Leahy. That is not my question. Why wasn't 
    General Hemingway. We have--
    Senator Leahy. --done for 3 years?
    General Hemingway. We have built a whole judicial system to 
try these cases, and the Appointing Authority, John Altenburg, 
came on in the spring of 2004, and by August we were in trial. 
And the only reason we are not in trial today is because of the 
exercise of the defense counsel and the detainees' rights in 
Federal courts. We are under a restraining order, or we would 
be trying cases right now down at Guantanamo.
    Senator Leahy. Those pesky rights and they--
    General Hemingway. Well, you asked--Senator, you asked me 
about delay, and that is the reason for the delay.
    Senator Leahy. I was a prosecutor, General, and I have some 
idea of what is involved. And a 3-year delay does seem rather 
strange with so many people being held because it is vital to 
our security that they be held. Now, do we have a plan? I mean, 
do we have a plan of how much longer these people could be held 
without any charge?
    General Hemingway. Senator, we have charges against four 
people. I cannot tell you how long an unprivileged belligerent 
is going to be held because I do not know how long this war is 
going to last. I do know that we are in compliance with the law 
by holding them.
    Senator Leahy. Most say that the war will last throughout 
our lifetime. Does that mean that we will always face, as most 
other countries have faced, terrorist actions as long as you 
and I live? Does that mean we could hold them that long without 
any charges?
    General Hemingway. I think that we can hold them as long as 
the conflict endures, but we have, as Admiral McGarrah has 
already pointed out, a very detailed process for releasing them 
if they no longer present a threat.
    Senator Leahy. Well, we now have a government in 
Afghanistan, yet the conflict continues. Is that what you are 
    General Hemingway. The conflict is not with the government 
of Afghanistan. The conflict is--
    Senator Leahy. The prisoners are from there.
    General Hemingway. --with a non-state organization.
    Senator Leahy. The prisoners are from there, though.
    General Hemingway. They are from all over the place. You 
know, we have citizens of 40 different countries, I think has 
been publicly released.
    Senator Leahy. Can you give me the list then of what other 
countries they are from?
    General Hemingway. I do not have that--
    Senator Leahy. The same question I asked Admiral McGarrah.
    General Hemingway. The citizenship, the countries, we will 
get back to you for the record.
    Senator Leahy. Please. Thank you.
    Senator Kyl?
    Senator Kyl. [Presiding.] Thank you. I think in view of the 
fact that the vote is now about half over and probably Senator 
Leahy and I should both go to vote, on behalf of the Chairman I 
am going to recess the Committee until Chairman Specter 
returns, in which case then he can reconvene the hearing. So 
for the moment, the hearing is recessed.
    [Recess 10:24 to 10:33 a.m.]
    Chairman Specter. The hearing will resume, and we will, in 
accordance with our custom, alternate--if I could have the 
attention of Senator Cornyn? If I could have the attention of 
Senator Cornyn, we are alternating, and with all these empty 
chairs--people are out voting--it means you are next.
    Senator Cornyn. Well, thank you very much. That is an 
unexpected pleasure, Mr. Chairman. Thank you for letting me ask 
a few questions.
    We have concluded all the statements of the panel. I was 
out for part of it, but I caught most of it. I just want to 
ask--maybe I will start with Mr. Wiggins. You know, time after 
time after 9/11, we heard experts talk about how we needed to 
change our framework to adapt to a post-9/11 environment. We 
heard in the intelligence arena that we needed to do more 
information sharing. We remember testimony of former Attorney 
General Janet Reno and others about bringing down the wall that 
separated the ability to share certain critical intelligence 
between our counterterrorism officials and law enforcement 
officials. And I wanted to ask you in particular, a lot of the 
concerns that I hear expressed about detention and 
interrogation start from the perspective of a law enforcement 
framework. In other words, the framework, the procedures, the 
constitutional requirements for someone who is accused of a 
crime are pretty clearly spelled out over 200 years of 
decisions by the Supreme Court and other courts, and spelled 
out by Federal statute.
    But could you explain to us how this is a different 
paradigm based on the President's authority under Article II, 
section 2 of the Constitution as commander in chief and why it 
is important for us to understand that we have a new post-9/11 
paradigm that we need to deal with?
    Mr. Wiggins. I will try, Senator. The Supreme Court has 
made plain that the President's commander in chief powers 
include all those powers necessary and proper to conduct war, 
to win war, and to defend the country. Not only does he have 
the power, he has the duty to do that. An incident, a necessary 
and important incident of that power, also confirmed by the 
Supreme Court, is the power to detain enemy combatants for the 
duration of the hostilities, most recently confirmed by the 
Hamdi decision, including those enemy combatants who are United 
States citizens, and as commander in chief of the military, the 
necessary and proper and essential authority to hold for trial 
those combatants who are unlawful belligerents or unprivileged 
belligerents for those crimes that violate the laws of war or 
other crimes that are regularly tried before military 
commissions. That power is not only resident in the 
Constitution, it has been confirmed by this body in the Uniform 
Code of Military Justice, which expressly recognizes and 
approves the military commission aspect of that authority, and 
it has been recognized and confirmed by the Court.
    Senator Cornyn. Let me interject. In other words, the 
people who are currently detained at Guantanamo Bay are not 
accused of a crime per se, but are enemy combatants, unlawful 
combatants, most who do not wear a uniform, recognize the laws 
of war, aren't a representative of a nation's military. So they 
fall into a unique category under Article II, section 2 of the 
Constitution, and the President's power as commander in chief 
to conduct military operations. Is that a rough summary?
    Mr. Wiggins. That is correct, Senator.
    Senator Cornyn. Okay. Thank you.
    Let me ask maybe both Admiral McGarrah and General 
Hemingway to respond to this question. The people who are at 
Guantanamo now have been categorized as terrorist trainers, 
bomb makers, recruiters and facilitators, terrorist financers, 
bodyguards of Osama bin Laden, and would-be suicide bombers. 
And I have been apprised that the U.S. has actually learned 
through interrogating these terrorists that the organizational 
structure of al Qaeda and other terrorist groups, the extent of 
terrorist presence in Europe, the U.S., and the Middle East, al 
Qaeda's pursuit of weapons of mass destruction, methods of 
recruitment and location of recruitment centers, terrorist 
skill sets, general and specialized operative training, and how 
legitimate financial activities are used to hide terrorist 
    I would like perhaps for you to comment on to what extent 
has using every lawful means available to the United States to 
secure actionable intelligence from detainees at Guantanamo Bay 
made America safer and saved American lives.
    Admiral McGarrah. Sir, I think the primary basis for 
detaining individuals, whether it be at Guantanamo or 
elsewhere, is there determination as enemy combatant and the 
authorization under the law of armed conflict and the 
acceptable laws of war to keep those combatants from returning 
to the battlefield.
    In addition to that, the interrogation that might provide 
us information to avoid future attacks and to understand our 
enemy is important. But the primary basis is to detain the 
combatants and to prevent them from returning to the conflict.
    General Hemingway. Senator, I cannot comment on what the 
intelligence community has gained through this particular 
process, but I can tell you that--and I am somewhat limited, 
since I am on the Government side of the house, in discussing 
evidence of cases that have not been brought to trial yet. But 
I think it is safe to say that the evidence that the Government 
will present in the trials by military commission will be 
consistent with the statements that you have made.
    Senator Cornyn. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Graham has commented that he is due in the chair at 
11 o'clock, and I am going to go to Senator Biden next on our 
alternate approach. But I just wanted to ask Senator Kyl, who 
has been here from the very start, and Senator DeWine if they 
would mind yielding to Senator Graham so that he can question 
next and then fulfill his obligation to the chair.
    Senator Biden?
    Senator Biden. Thank you, Mr. Chairman. Thank you for 
holding this hearing, and thank you for the way you 
characterized the purpose of the hearing. I think it is 
overdue, and I cannot think of anybody to be in better hands to 
try to work out--I mean it sincerely--the Congress's 
responsibility and role in dealing with these issues. And I am 
glad you are in the chair, and I am glad you have called the 
hearings. And the only thing I can say that I do not miss about 
being in the majority is having to sit in that other chair on 
the floor of the Senate.
    Gentlemen, we have a legitimate need for a facility to deal 
with enemy combatants, and there is no question about that in 
my mind. We also have a real problem, though, guys. We have a 
war, as you said, General, but we have two wars going on. We 
have a war that actually relates to people who are trying to do 
bad things to us and strapping bombs on themselves and planning 
on how to run planes into buildings, et cetera. We also have a 
war for the hearts and minds of those folks because you know, 
your staff, colleagues, they point out you cannot win that war 
by a military response alone. We have to dry up those pools 
where they recruit, and we have 1.2 billion Muslims in the 
world. And guess what, General? We are doing real badly. We are 
doing real badly on that part of the war. As a matter of fact, 
it is a disaster.
    My concern--and I know it is broader. We will get back to 
it hopefully in another context. My concern relates to the fact 
that, rightly, wrongly, good, bad, or indifferent, the reality 
is that the vast majority of the rest of the world, and 
particularly the Muslim world, thinks what we are doing at 
Guantanamo is very bad. All you have to do is hear an article 
written in a thing called Periscope about the treatment of the 
Koran, and you have got 100,000 people in our allies' street--
in our allies' street in Pakistan.
    We got ourselves a problem, as they say in those old 
movies. We got ourselves a communications problem. So we better 
figure something out. Whether or not it is totally appropriate 
under every international law and constitutional prescription 
that we do exactly what we are doing in Guantanamo, we have got 
a problem. I realize it is above each of your pay grades. In a 
sense, it is above my pay grade. I am not the President. None 
of us here are. Not much you can do about it, but that is why I 
have called for an independent commission. The first bill 
introduced, S. 12, we called for an independent commission to 
be set up so we take it out of the partisan realm, move it into 
a realm where we have a group like the 9/11 Commission, give us 
some real live recommendations about how we should proceed from 
here, what we should do, because anybody who thinks it is not 
causing us some difficulty around the world I think is not 
reading the press or traveling around the world, as I have been 
and many of us up here have been.
    So I want to let you know that is the backdrop of my 
questions here. I am not going to spend the remaining 4 
minutes, or whatever I have, on the detail that we are going to 
have to go into in terms of how to rewrite legislation 
consistent with our desires, as the Court has suggested.
    But the first question I have--and as briefly as you can 
answer, I would appreciate it. This is an ongoing conflict. 
What is the definition of when the conflict ends? Because if 
there is no definition as to when the conflict ends, that means 
forever. Forever. Forever these folks get held at Guantanamo 
Bay. That is part of the problem here.
    And I realize it is difficult, General. You point out this 
is not the same kind of war. Before, you would end a war with 
an armistice. There is an agreement. War is over, detainees go 
    Has anybody at Justice defined when there is the end of 
    Mr. Wiggins. No, sir.
    Senator Biden. Now, does that mean that it is the 
administration's position that the folks who we consider a 
danger, 550 or so folks at Guantanamo, will be held in 
    Mr. Wiggins. It is our position that legally they could be 
held in perpetuity, what in fact is happening is the annual 
review boards, the CSRT process. In fact, many have been 
released and prior to the institution of those proceedings.
    Senator Biden. Well, I think for the record it would be 
useful--my time is up--that if not in this Committee, through 
the Intelligence Committee, if they tell us we cannot do it 
here--we should know what the criteria of a threat is. The 
Admiral answered the question absolutely accurately asked by my 
colleague from Texas: What is the reason we are holding these 
people? They are enemy combatants. Not that they are 
terrorists, not that they present an extraordinary danger. The 
rationale is they are enemy combatants.
    I thought my colleague was telling me to stop, but I should 
stop anyway.
    At any rate, I would like to know at some point, if it 
means even in a classified context, what is the definition 
applied for the criteria as to why we are keeping these folks, 
if it anything beyond the fact that they are designated as 
enemy combatant, because we use a lot of rhetoric that gets the 
American people all juiced up that they are terrorists who are 
going to do these horrible things to us. You do not have to get 
to that point, I don't think, to hold them. I think all you 
have got to do is determine they are enemy combatants. So I 
would like to know what the criteria is, and I thank the Chair. 
My time is up.
    Chairman Specter. Thank you very much, Senator Biden.
    Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    Sort of building on what Senator Biden said, one thing we 
have learned in this war is that what happens at Gitmo and Abu 
Ghraib does not stay at Gitmo and Abu Ghraib. It is kind of 
like the old rule, what happens TDY stays TDY. We have learned 
that if Newsweek gets it wrong, people can get killed. So image 
is very important.
    And there is a side to Gitmo that you probably cannot tell 
us about. I do believe we are safer by having a Gitmo. There 
are three goals that I would like to articulate here and see 
how we can come up with a legislative buy-in.
    Number one, there should be a place where you can gather 
good intelligence to make this country safer, and I think you 
have done a pretty good job of doing that, but some of the 
techniques have seeped out and created problems. The idea of 
physical or psychological stress to get good information to me 
is acceptable in the international norms, and we need to look 
at a way to standardize that, because I worry about some of our 
own troops getting prosecuted under our own laws if we do not 
have standardization
    Accountability. An enemy combatant in this war almost is a 
per se assumption that you are involved in terrorist activity. 
So once the determination that an enemy combatant status has 
been conferred upon someone, to me it is almost impossible not 
to envision that some form of prosecution would follow. I think 
it is very important for the people who join up with these 
terrorist organizations to know that their day of reckoning is 
coming, either on the battlefield as a casualty or in some 
courtroom somewhere, that they cannot do this without some 
accountability. So I do hope that we do not lose sight that 
accountability is very important, and there is some information 
down there that would be good for the world to hear about who 
we have, and the best way to hear it is through an open process 
called a military tribunal.
    And the third is that we can do this and be a rule of law 
nation. We can prove to the world that even among the worst 
people in the world, the rule of law is not an inconsistent 
    So my question basically goes to this proposition: There is 
not enough buy-in by the Congress to what is going on at Gitmo. 
There is a buy-in on my part, and I think many others, that we 
need this place desperately to protect us in this war on 
terror, to hold people accountable, to get good intelligence, 
and the rule of law aspects of how it is working is not well 
known or is not hitting on all cylinders because we are in 
court arguing about this.
    Do you believe, each of you, that if the Congress developed 
some statutory provisions defining enemy combatant status and 
standardizing intelligence-gathering techniques and detention 
policy it would help our cause, it would help what you are 
doing? What is your view of the Congress's involvement in this? 
We will start with the Admiral, go to the General, and all the 
way down.
    Admiral McGarrah. Sir, I have no idea what you meant about 
    Senator Graham. Good answer.
    Admiral McGarrah. Sir, I do think we need an 
internationally accepted definition of enemy combatant, and I 
think the definition we are using has precedent. I was not 
involved in--
    Senator Graham. Do you think if the Congress got involved 
to write a statute defining enemy combatant, that if the 
Congress bought into this whole concept, it would help your 
effort or not?
    Admiral McGarrah. I think the concept already exists in 
international law. I think anything that can be done to help 
clarify this would help.
    Senator Graham. General? For disclosure, he was my first 
boss in the Air Force.
    General Hemingway. Senator, I think it is fair to say that 
the Department of Defense is always willing to consider 
anything that Congress wants to propose.
    Senator Graham. Thank you, sir.
    Mr. Wiggins. I agree with General Hemingway. We are happy, 
as always, the Justice Department would be, to review any 
proposed legislation, Senator.
    Mr. Fine. I do not have a position on that. I am going to 
have to defer to the Department of Justice on that. That is not 
really within my jurisdiction, Senator.
    Senator Graham. Well, I am going to yield back my 50 
seconds by concluding with this: I think it would be 
tremendously helpful is the Congress and the administration 
came together with some general statutory language to help 
define what is going on at Guantanamo Bay, to better define 
what an enemy combatant is, to make sure that due process is 
affordable. But the main goal of this war is to protect 
Americans, and it is not inconsistent with the rule of law. The 
more buy-in, the better, so that would be my recommendation to 
this panel and to the Committee that we jointly work on this 
problem, because if we do not have the buy-in across the 
country in all three branches of Government, we are going to 
lose this war if we do not watch it.
    Chairman Specter. Thank you, Senator Graham.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman. I am 
going to make a brief comment and then just have a question or 
two for my time.
    I first of all want to commend you, Mr. Chairman, for 
calling this hearing. For too long we have had no genuine 
inquiry into the abuses of Guantanamo and how they happened, 
and those abuses have shamed the Nation in the eyes of the 
world and made the war on terror harder to win. And in many 
parts of the world, we are no longer viewed as the Nation of 
Jefferson, Hamilton, and Madison. Instead, we are seen as a 
country that imprisons people without trial and degrades and 
tortures them. Our moral authority went into a free fall.
    The FBI has reported the use of torture as an interrogation 
tool at Guantanamo and complained to the Justice Department and 
the Defense Department about its use. And the Red Cross has 
documented scores of abuses at Guantanamo and elsewhere. Top 
officials in the administration have endorsed and defended 
interrogation that we have condemned in other countries, 
including forcing prisoners into painful stress positions for 
hours, threatening them with dogs, depriving them of sleep, 
using so-called water-boarding to simulate drowning. We have 
degraded and exploited our own female military personnel by 
encouraging them to use sexually degrading methods of 
interrogation. We have locked people away without creating an 
adequate process to distinguish who belongs and who should be 
released. Detainees have been held year after year under the 
worst possible conditions, and we fail to provide any way to 
determine whether they are guilty of anything.
    The endless detention without safeguards is an additional 
shameful abuse that has to be corrected. there is no question 
that Guantanamo has undermined our efforts in the war on 
terrorism. It has stained our reputation on human rights. It 
has inflamed the Muslim world, and it became a powerful 
recruiting tool for terrorists. Its continued existence only 
makes it more likely that Americans will be attacked by 
terrorists at home or in other nations throughout the world.
    Closing Guantanamo makes sense. It has become a symbol of 
U.S. hypocrisy on human rights, but merely emptying the prison 
and bulldozing its walls will not cure the illegality. We need 
a thorough investigation of what happened there and at other 
detention and interrogation facilities around the world. In 
particular, we need to know whether it was approved at the 
highest levels of our Government.
    Closing the facility without a full investigation only 
makes it easier to pretend that the executive branch is above 
the law. We also need to make sure that the administration does 
not send these and future detainees to places unknown that are 
even more difficult to monitor.
    Guantanamo was conceived and created to be a place beyond 
judicial review, and the administration tried to ensure that it 
would be accountable to no one in deciding who should be 
detained and how they would be interrogated. The resulting 
physical abuses and denial of due process were the direct 
result of this misguided policy that thumbed its nose at the 
rule of law.
    One of the great tragedies of Guantanamo is that the 
consequences were so foreseeable and avoidable if the 
administration had simply chosen to use the existing legal 
framework already in place both to protect our security and to 
grant due process. William Taft, the State Department's legal 
advisor in President Bush's first term, recently called it a 
source of amazement and disappointment that the Justice 
Department severely limited the applicability of the Geneva 
Conventions to the detainees. In an address at American 
University, he said, ``The decision to do so unhinged those 
responsible for the treatment of detainees from the legal 
guidelines for interrogation embodied in the Army Field Manual 
for decades. Set adrift in uncharted waters and under pressure 
from their leaders to develop information on the plans and 
practices of al Qaeda, it was predictable that those managing 
the interrogation would eventually go too far. That is why we 
have checks and balances in our democracy. What happened at 
Guantanamo is proof of the famous truth that power corrupts and 
absolute power corrupts absolutely.''
    Laws enacted long before the 9/11 tragedy authorized 
effective interrogation and legitimate detention of prisoners. 
The Geneva Convention permits interrogation. The criminal laws 
permit interrogation. The Army Field Manual provided long-
standing guidelines for interrogation. But indefinite and 
unreviewable detention to interrogate prisoners is not 
permissible, and we have learned how dangerous it is to our 
ideals and our respect in the world.
    The administration tried to redefine torture to make many 
abuses permissible. They rejected the Geneva Convention over 
the objections of Secretary of State Colin Powell. They 
abandoned traditional military justice in favor of a system 
that experts warned would be unworkable and unjust. We cannot 
stay silent while the administration prosecutes a few low-level 
soldiers and tells us that no one else that no one else bears 
responsibility for the abuses or while CIA planes fly detainees 
in secret to other countries that we know engage in torture.
    It is wrong to hold detainees indefinitely, deny them the 
same rights that we would want for our own captured servicemen 
and -women. Guantanamo symbolizes reprehensible policies and a 
set of values that are unacceptable and un-American and that 
reflect the standards of behavior well below what we have tried 
to achieve for 200 years, and those who are responsible for 
designing the system must be held accountable.
    I realize my time is up, Mr. Chairman. I will wait until 
the next round.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    I would like to, before I pose a question, get back to a 
couple of basics. We are talking, first of all, about people 
who have been captured on the battlefield right after they have 
been shooting at our soldiers. And we all like to immediately 
join in healthy applause when someone mentions our young men 
and women that we have sent into battle. It is the thing to do. 
It is heartfelt. And yet for some reason, immediately after 
doing that, we are prepared to jump to conclusions that U.S. 
officials, including people in the military, are prone to 
violate people's human rights. They have been shot at. People 
have been captured on the battlefield. And you have got to have 
a place to hold them. There has to be some place to do two key 
things: prevent them from causing further damage, killing 
American service people, among other people; and, secondly, to 
use the appropriate interrogation techniques to learn 
everything you can in order to save additional lives. And so 
that is the basic thing we are talking about here.
    I want to ask a question based upon a declaration of Vice 
Admiral Lowell Jacoby, who is the Director of the Defense 
Intelligence Agency, and I ask unanimous consent, Mr. Chairman, 
to put this entire declaration into the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Thank you. Just a couple of provisions of it.
    He says, ``Interrogation is a fundamental tool used in the 
gathering of intelligence. Interrogations are vital in all 
combat operations, regardless of the intensity of the conflict. 
When done effectively, interrogation provides information that 
likely could not be gained from another source.''
    He points out that after World War II, 43 percent of all 
the intelligence produced in the European theater was from 
human intelligence and 84 percent of that was from 
interrogation, and that the majority of everyone surveyed 
agreed that interrogation was the most valuable of the 
collection techniques.
    He points out that insertion of things which disrupt the 
trust and reliance which the captors need to establish with 
regard to detainees prevents the effective gathering of 
intelligence, a process that he notes can take a long period of 
time. Just one quotation, he says, ``Anything that threatens 
the perceived dependency and trust between the subject and 
interrogator directly threatens the value of interrogation as 
an intelligence-gathering tool. Even seemingly minor 
interruptions can have profound psychological impacts on the 
delicate subject-interrogator relationship. Any insertion of 
counsel into the subject-interrogator relationship, for 
example, even if only for a limited duration or for a specific 
purpose, can undo months of work and may permanently shut down 
the interrogation process.''
    There is much more in this declaration, but he concludes by 
saying, ``In summary, the war on terrorism cannot be won 
without timely, reliable, and abundant intelligence. That 
intelligence cannot be obtained without robust interrogation 
efforts. Impairment of the interrogation tool, especially with 
respect to enemy combatants associated with al Qaeda, would 
undermine our Nation's intelligence-gathering efforts, thus 
jeopardizing the national security of the United States.''
    Now, colleagues have talked about other aspects of the war 
on terror, how it is important to win hearts and minds, and we 
all agree that that is important, too. It is important to win 
on the battlefield. There are a lot of things that are 
important. But Admiral Jacoby points out that the war cannot be 
won without good intelligence, much of which comes from these 
very combatants that have been captured on the battlefield.
    My question, beginning with you, Admiral, and then General, 
and Mr. Wiggins, if you would like to respond, is whether you 
agree or disagree with what Admiral Jacoby has said with 
respect to interrogation and the problems that interruption of 
that interrogation can cause.
    Admiral McGarrah. Senator, I think it is always important 
for operational commanders to have a situational awareness of 
their enemy and of their battlefield, and anything that can 
provide the kind of intelligence that we need to do the right 
thing is important.
    Senator Kyl. General?
    General Hemingway. Senator, the Admiral is far more capable 
of making that point than I, and I agree with everything he 
    Senator Kyl. Thank you, sir.
    Mr. Wiggins?
    Mr. Wiggins. Senator, I have no basis, no legal basis to 
judge the Admiral's declaration. I will point out, however, 
that it was a part of the record in the Padilla case--
    Senator Kyl. I am sorry?
    Mr. Wiggins. It was a part of the record in the Padilla 
case at the Supreme Court.
    Senator Kyl. Yes, indeed. And, in fact, he specifically 
noted the problems that would arise in the Padilla case itself 
were this interrogation system to be disrupted.
    I gather, Mr. Fine, this is not something you want to 
discuss based on your responsibilities.
    Mr. Fine. No, sir.
    Senator Kyl. And I understand that very much.
    Mr. Chairman, I just think it is important to establish 
that you have got to keep the people off the battlefield if 
they are going to go right back and kill you, as approximately 
5 percent of these folks have when they have been released. To 
your important question, what makes you think that their 
promise of not wanting to kill you again is going to be kept? 
And, secondly, that this interrogation process is very 
important to saving American lives, both on the battlefield and 
here at home, and that we have to be mindful of the situations 
in which we can preserve that kind of legitimate interrogation 
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman. Thank 
you also for holding this hearing.
    I would just like to respond to Senator Kyl's analysis of 
the battlefield and prisoners after shooting, all of whom are 
shooting at our soldiers. I would submit that the battlefield 
is a very varied place in this war on terror. And I would also 
submit that people can be swept into the battlefield and be 
arrested and detained who are not necessarily terrorists.
    In any event, I have written a letter to the Department of 
Defense, asked 12 questions, have a response to four. I would 
like to submit that for the record, with an additional letter 
sent to the Intelligence Committee.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Feinstein. Thanks, Mr. Chairman.
    This letter says there are approximately 520 detainees at 
Guantanamo; 750 have been processed through the facility. As of 
April of 2005, Defense has released 167 and transferred 67 to 
other Governments subject to conditions, and there have been no 
detainee deaths at Guantanamo.
    I also asked questions about other places--Bagram, 
everywhere that we have detainees sequestered. I have not had 
answers to these questions. I hope they will be forthcoming.
    I would like to call everybody's attention to the testimony 
about to come from Lieutenant Commander Swift. It is very brave 
testimony, and let me preface my remarks with the hope that 
there is no reprisal against Lieutenant Commander Swift.
    I think his testimony in writing is eloquent. It points out 
what is wrong, and it also points out what a remedy has to be. 
I am going to try to very briefly synthesize his testimony, and 
I would like to ask General Hemingway to respond.
    Lieutenant Commander Swift is a 17-year Navy veteran, 11 
years a member of the JAG Corps. He was assigned to represent a 
Salim Ahmed Hamdan, a Yemeni national facing trial before this 
military commission. Let me quote from his remarks.
    ``At the onset of my representation *  *  * I was deeply 
troubled by the fact that to ensure that Mr. Hamdan would plead 
guilty as planned, the Chief Prosecutor's request came with a 
critical condition that the Defense Counsel was for the limited 
purpose of `negotiating a guilty plea' to an unspecified 
offense and that Mr. Hamdan's access to counsel was conditioned 
on his willingness to negotiate such a plea.''
    Now, I am skipping around, but it is all in the record 
here, and everyone can read it.
    ``I knew that I had to tell Mr. Hamdan that if he decided 
not to plead guilty, he may never see me again.''
    ``Upon meeting with [him] I was *  *  * confronted with the 
fact that the realities of his pretrial confinement did not 
live up to
*  *  * promise of humane conditions *  *  * Mr. Hamdan was 
held in isolation for more than 7 months in violation of the 
Geneva Convention. [His] cell lacked both natural light and 
ventilation. For *  *  * the first 60 days of that pretrial 
detention, [he] 
was only permitted *  *  * a half-hour of exercise and then 
at night*  *  * [He] was not permitted any reading material 
beyond *  *  * the Koran'' or ``free exercise of religion.''
    ``Despite Attorney General Ashcroft's assurances to Senator 
Edwards that the President's Military Order would not be used 
to detain a person for an unlimited period of time, General 
Hemingway rejected Mr. Hamdan's request for a speedy trial, 
finding that he had no right to a speedy trial and could be 
held indefinitely.''
    ``Mr. Hamdan's request for independent medical evaluation 
was rejected in favor of a cursory twenty minute psychiatric 
examination *  *  * the extent of damage done to Mr. Hamdan by 
the conditions of his confinement and the methods utilized in 
his interrogation was able to be determined *  *  * Mr. Hamdan 
suffered from Post Traumatic Stress Disorder as a result of the 
abuse he had suffered during his detention and had experience 
of major depression during his solitary confinement.''
    ``After 4 months in solitary *  *  * [he] was on the verge 
of being coerced into a guilty plea or deteriorating mentally 
to the point that he would be unable to assist in his defense 
if he ever came to trial.''
    The attorney goes on to say that he has filed a petition 
for writ of mandamus and habeas, challenging both the 
lawfulness of procedures and the jurisdiction of the 
    ``After the Supreme Court determined that detention in 
Guantanamo Bay was not a bar to Habeas Corpus, the Prosecution 
hastily referred a single charge of conspiracy against Mr. 
    And then it goes on to show the deterioration. ``The 
Department of Justice maintains that three military officers, 
two of which have no legal training or experience, are better 
suited to determine a commission's lawful jurisdiction than a 
Federal court.'' And it goes on and on.
    I would like to ask, General Hemingway, since you were 
mentioned, I would like to ask for your response.
    General Hemingway. Well, we could be here all afternoon. It 
is a fairly lengthy statement on Lieutenant Commander Swift's 
    In the first place, the chief defense counsel is the 
individual who appointed Lieutenant Commander Swift to defend 
Mr. Hamdan, not the prosecutor. And I am unaware of any threats 
whatsoever that were ever made through Mr. Swift to Mr. Hamdan 
of the nature that he recounts in his statement.
    As far as the demand for a speedy trial is concerned, he 
sent a letter to me last fall invoking Article 10 of the UCMJ, 
and I responded by informing him that Mr. Hamdan was held as an 
unprivileged belligerent and that Article 10 did not apply 
under those circumstances.
    As far as his mental health is concerned, he was seen by a 
mental health professional, a psychiatrist, at Guantanamo Bay, 
and he accepted weekly mental health visits, and the 
information that has been provided to me by those people is 
that his mental health is satisfactory.
    As far as referral is concerned, I can guarantee you that 
that was not done hastily in response to any Federal court 
decision. The timing might have been coincidental, but the 
office of the chief prosecutor had been working that for quite 
some time.
    He also asserts that he was not given the names of the 
people who had interrogated or interviewed Mr. Hamdan. He 
signed a receipt on the 27th of September last year 
acknowledging receipt of the names of all of those people.
    My time is up.
    Senator Feinstein. Was his representation conditioned on 
pleading guilty?
    General Hemingway. No.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Chairman Specter. Senator Feinstein, if you want to pursue 
this, you may.
    Senator Feinstein. Well, what you have said to me, General, 
is that this man has no rights at all, essentially. He is 
charged with conspiracy. That is it. He has been there, 4 
months in isolation, contrary to Geneva Convention, and he 
could be there essentially forever. That is how I interpret 
what you have said. If it is different, please tell me.
    General Hemingway. Well, he is not being held contrary to 
the Geneva Convention. He is being held humanely--
    Senator Feinstein. The isolation for--
    General Hemingway. --and it is my understanding that he is 
in the general population at Guantanamo Bay. As far as his 
rights are concerned, I have mentioned in some detail the 
rights that all of these people would have available before a 
military commission: the presumption of innocence, the 
appointment of an attorney free of charge, proof beyond a 
reasonable doubt, the right to call witnesses, the right to 
cross-examine, the right to review. And as far as resources are 
concerned, we have provided extraordinary resources to both 
Lieutenant Commander Swift and to the Office of the Chief 
Counsel, Chief Defense Counsel.
    Senator Feinstein. Well, that is not what this statement 
says, and this--
    General Hemingway. Oh, I understand that is not what it 
says, but his recollection of these events and my view of the 
procedures are considerably different than what he represents 
in that statement.
    Senator Feinstein. Let me ask you this: So pre-commission, 
housing in solitary for 7 months is not a violation of the 
Geneva Convention?
    General Hemingway. I would not consider the conditions 
under which he was held to be solitary confinement. I have seen 
the facilities. From what the people at Guantanamo Bay have 
told me about the conditions and the treatment he received, I 
would not call it solitary confinement. He was removed from the 
general population, but I would not call what he was in 
solitary confinement.
    Senator Feinstein. Would you call it ``isolation''?
    General Hemingway. I would call it ``segregation.''
    Senator Feinstein. Well, I think, Mr. Chairman, if I might, 
Lieutenant Commander Swift is going to come before us. I mean, 
this is a case study and everything that we have read it is a 
case study and what Time magazine has just written about. If I 
understand the Supreme Court decision correctly, detainees do 
have habeas corpus rights. They do have a right to be brought 
before a process, and I would be rather surprised that 
Lieutenant Commander Swift would say that he had to plead 
guilty to get counsel if he did not, because that is a rather 
dramatic statement.
    Chairman Specter. Senator Feinstein, as you noted, 
Lieutenant Commander Charles Swift will be on the second panel, 
and if it is not inconvenient, General Hemingway, we would 
appreciate it if you would stay. There may be a follow-up. I 
have allowed you more time.
    Senator Feinstein. I appreciate that.
    Chairman Specter. It took your full amount of time to pose 
the question, and understandably because you went through a 
very detailed record.
    Senator Feinstein. You are very generous. Thank you.
    Chairman Specter. One of the difficulties of the whole 
hearing process is that we have many witnesses. We have a 
second panel. We have a lot of interest by members, and in 5 
minutes you do not get a whole lot done. But when you had 
raised the issue in those details, it seemed to me appropriate 
to have that extra latitude. But Lieutenant Commander Swift 
will be present.
    General Hemingway, would your schedule permit you staying 
through his testimony?
    General Hemingway. Yes, Senator.
    Chairman Specter. Thank you.
    Okay. Senator DeWine?
    Senator DeWine. Thank you, Mr. Chairman.
    Admiral and General, I have just one question for each one 
of you. Maybe you can clarify something for me.
    Admiral, I do not quite understand. How does a detainee go 
from being an enemy combatant to not being an enemy combatant? 
I mean, presumably this person has been detained all this time. 
What changes? How does the status change? Was a mistake made 
originally or what changes the status?
    Admiral McGarrah. Senator, my process is the latest and 
most formalized of the determinations of enemy combatant 
status. Prior determinations were made based on the information 
that was available at the time that determined that these 
detainees were enemy combatants. There are a variety of things 
that might change. There could be some additional information 
that is made available. These cases, for the most part, are not 
black and white. There are ambiguous facts, and the panels take 
the information, all the information available to the 
Government at the time, and make the best determination that 
they can at the time.
    That does not mean the prior determinations were wrong. It 
means that based on the information available to us, our panels 
made the determination.
    Senator DeWine. Well, I appreciate that. I heard you say 
two things, and I want to make sure I have got it correctly, 
and you can tell me if I am wrong.
    You indicated that your process was different. You also 
indicated that in some cases the facts were different. Now, is 
that correct? We have a different process, we have new facts.
    Admiral McGarrah. I am not familiar with the details of the 
prior processes, but my understanding is that ours is the most 
formalized of the determinations that are made. The different 
facts would relate to information obtained subsequent to the 
original apprehension.
    Senator DeWine. So your answer is that it could be because 
we have new facts, it could be because we have a new process. 
Could be.
    Admiral McGarrah. Yes, sir, those are all factors, and the 
members of the tribunal look at all the information available 
and make the best determination they can at the time.
    Senator DeWine. And you are not familiar with the previous 
    Admiral McGarrah. No, sir, I am not familiar with the 
detailed mechanics of the previous processes.
    Senator DeWine. You said that, I believe, 12 of the 520 
detainees have been referred for trial before a military 
commission. Obviously, that leaves the question about what 
about the other detainees, and I may have missed this in your 
testimony. I was voting. I apologize. But what happens to the 
other ones, and what is the process? What can we expect?
    General Hemingway. Well, you can expect that the office of 
the Chief Prosecutor will be sending more information forward 
for Presidential determinations as t whether or not there is a 
reason to believe that there are people subject to trial by 
military commission. There are three currently in movement, and 
I know that the office of the Chief Prosecutor is working on 
more. And as the investigators present more and more evidence 
to the office of the prosecutor, they valuate them to determine 
whether or not charges can be brought for violations of the law 
of war.
    Senator DeWine. General, is this a case of not being able 
to process them fast enough, in other words, you do not have 
enough people? Or what is the situation? It is kind of hard for 
a lay person sitting here to understand what is going on and 
not only--
    General Hemingway. Well--
    Senator DeWine. Let me just finish, if I could, sir. You 
know, this is the Judiciary Committee. We are lawyers here. I 
am a former prosecutor. We have got other former prosecutors up 
here. And, you know, our whole training, our whole system is 
that people determine what the facts are, you charge them, and 
you move ahead. And I understand that your life is not that 
simple. I appreciate that. But explain to me, you know, what is 
going on here. This seems to be a horribly slow process.
    General Hemingway. Well, in the first place, the primary 
reason that we hold people is to get them off the battlefield 
and, secondarily, to gain intelligence.
    Senator DeWine. I understand.
    General Hemingway. Until the intelligence effort has 
concluded on any particular detainee, the law enforcement 
effort really does not commence. Once we know that the 
intelligence people have finished in their analysis of the 
individual, we look at what they have collected and make a 
determination whether or not this individual is a candidate for 
trial by military commission.
    As far as the current status is concerned, we are under a 
restraining order.
    Senator DeWine. I understand that, but should we assume 
that in most of these cases you would be telling us that the 
intelligence gathering is continuing on most of these 500-and-
some individuals?
    General Hemingway. I would have to say that is probably 
correct. When we get files--
    Senator DeWine. I want to--
    General Hemingway. When we get files from--
    Senator DeWine. Excuse me, sir. Is it probably or is it? I 
mean, do you know? If you don't know, that is fine.
    General Hemingway. I don't know.
    Senator DeWine. You don't know.
    General Hemingway. I don't know exactly how many people 
that they are done with, but I do know that the office of the 
Chief Prosecutor aggressively collects information to develop 
    Senator DeWine. But as far as the question of how many of 
them they have actually gotten all the intelligence they think 
they can get, you don't know what that figure--
    General Hemingway. I couldn't give you a good figure.
    Senator DeWine. Well, my time is up, Mr. Chairman. Thank 
    Chairman Specter. Thank you very much, Senator DeWine.
    Senator Durbin?
    Senator Durbin. Mr. Chairman, let me thank you personally 
for holding this hearing. I have been hoping for such a hearing 
for a long time, and I think you show extraordinary courage in 
holding it, and I appreciate it very much.
    Let me say at the outset here that I am troubled by what 
has happened at Guantanamo, and I am troubled by the recent 
debates about whether we need to close this piece of real 
estate. I don't think this hearing should be about a piece of 
real estate or where it is located. It should be about the 
conduct of the United States wherever prisoners are in our 
control. And I think that really gets to the heart of the 
issue, whether it is in Guantanamo, in Iraq, Afghanistan, or in 
undisclosed locations.
    Before 9/11, we had signed on with the rest of the world to 
certain standards of conduct. We said civilized nations, even 
in the course of war, will play by certain rules to a certain 
level. And then, of course, we know what happened after 9/11. 
Without consulting Congress, this administration unilaterally 
set aside many of the provisions of these treaties that we had 
said were part of the law of the land, and they created a 
detention policy that violates many of those treaties. They 
claimed the right to seize anyone, including an American 
citizen, anywhere in the world, including the United States, 
and to hold them until the end of the war on terrorism, 
whenever that may be.
    There were dissenters to that point of view, and it was not 
from civil libertarians. The dissension came first from Colin 
Powell, former Chairman of the Joint Chiefs of Staff, who 
warned this administration that this was a bad idea. Colin 
Powell said to the administration it will reverse over a 
century of U.S. policy and practice in supporting the Geneva 
Conventions and undermine the protections of law of war for our 
troops, both in this specific conflict and in general.
    But the administration persisted in this new approach--
persisted until it reached the point where it came to the 
Supreme Court, and the Supreme Court ruled that the 
administration is wrong.
    The question I would like to ask Mr. Wiggins is this: Last 
year, in two landmark decisions the Supreme Court rejected the 
administration's detention policy. The Court held that 
detainees at Guantanamo have the right to challenge their 
detention in Federal court. I am troubled by your response, the 
administration's response to these decisions. Your approach 
seems to be to interpret them as narrowly as possible, even 
when the interpretation does not withstand close scrutiny.
    Let me give you an example. The administration now 
acknowledges that Guantanamo detainees can challenge their 
detention in Federal court, but you still claim that once the 
detainees get to court, they have no legal rights. In other 
words, you believe a detainee can go to the courthouse but 
cannot come inside. One Federal court has already rejected your 
    Mr. Wiggins, the Supreme Court held that Guantanamo 
detainees' claims that they were detained for over 2 years 
without charge and without access to counsel, and I quote, 
``unquestionably describes custody in violation of the 
Constitution or laws or treaties of the United States.''
    If the administration's position is that detainees have no 
legal rights, as you claim, how could the Court say that the 
claims of the detainees described violations of their rights?
    Mr. Wiggins. Senator, the text that you quoted is from a 
footnote, Footnote 15 of the Rasul decision. The Supreme Court 
said numerous times during the course of the decision, 
including at the end, that the only issue they were deciding 
was the jurisdiction of the United States courts to hear habeas 
petitions. That footnote says what it says. It is appended to a 
paragraph that says that we--it talks about facts pled for 
jurisdictional purposes. We think, and we have told the court 
in our pleadings that we think that the most logical reading of 
that decision, of that footnote, is that it describes 
jurisdictional facts and it makes sense in that context. It 
would not make sense in the context of the paragraph overruling 
years of precedent in the Eisentrager case--
    Senator Durbin. Mr. Wiggins--
    Mr. Wiggins. --the Verdugo case, the Zadvydas case, all of 
which said--
    Senator Durbin. Mr. Wiggins, I am not carping on a trifle. 
I am not sitting on a footnote here. How can you have a habeas 
right if you don't acknowledge that the detainee has some 
rights? I mean, that is what it boils down to. And I cannot 
understand the administration's position of ignoring what the 
Supreme Court has said, even if it is from a jurisdictional 
    Let me go to another example. You claim that you are 
complying with Supreme Court decisions because you have created 
military tribunals, the CSRTs. These tribunals are supposed to 
determine whether a detainee has been accurately designated as 
an enemy combatant. The detainee is not entitled to an 
attorney. The CSRTs rely upon secret evidence that the detainee 
is not allowed to review. That does not seem like due process 
by any stretch.
    In fact, two Federal courts have already held CSRTs fail to 
comply with Supreme Court rulings. One court concluded they 
deprive the detainees of sufficient notice of the factual basis 
for their detention and deny them a fair opportunity to 
challenge their incarceration.
    How can a detainee challenge the grounds of his enemy 
combatant designation if he does not have access to the 
evidence supporting that designation?
    Mr. Wiggins. Senator, he does have access to the 
information. The procedures that are set up for the CSRT are 
procedures that the Supreme Court in Hamdi, the plurality, 
expressed the view that those procedures would be sufficient--
more than sufficient, actually. They expressed the view that an 
Article 5-type hearing or a hearing set forward in the military 
regulations that provided very basic due process rights was all 
that was required. The CSRT procedures, as established by the 
military order, provide that the detainee will have the factual 
basis for his detention disclosed to him before the tribunal--
    Senator Durbin. Mr. Wiggins, my time is running out, and I 
would like to read to you from the decision so you understand 
what you just said is not true, and I quote--
    Chairman Specter. Senator Durbin, would you make this 
brief, please?
    Senator Durbin. I would be happy to, Mr. Chairman. Thank 
you. And I quote: ``In sum, the CSRT's extensive reliance on 
classified information in its resolution of enemy combatant 
status, the detainees' inability to review that information, 
and the prohibition of assistance by counsel jointly deprive 
the detainees of sufficient notice of the factual basis of 
their detention and deny them a fair opportunity to challenge 
their incarceration.'' And what I just read to you is not in a 
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Durbin.
    Senator Feingold, I think I erred in not calling on you 
earlier. It is a little hard. We go by the early-bird rule 
about people who come and leave, and you were on the earlier 
list, so you will be recognized next after we turn to Senator 
Coburn, who I think has early bird--
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Leahy. I should also apologize to Senator Feingold. 
I did not have the list until after--
    Senator Feingold. Don't worry about it.
    Chairman Specter. It is a juggling act under the early-bird 
rule and seniority and people who come and go, but I think you 
should have been recognized earlier.
    Senator Coburn, you were here earlier. Senator Sessions 
came a little later. Both of you have been in and out. Senator 
Sessions, will you yield to Senator Coburn?
    Senator Sessions. I would be pleased to.
    Senator Coburn. I just want to clarify for the record a 
couple of things on the IG report in terms of the Manhattan 
Detention Center. Mr. Fine, all these individuals were illegal 
aliens. Is that correct?
    Mr. Fine. All but one had violated immigration law in some 
context, either by overstaying their visa or entering the 
country illegally. That is correct.
    Senator Coburn. All right. And some of them had not come 
back for detention hearings. Is that correct?
    Mr. Fine. Some of them had not been--had absconded from 
    Senator Coburn. So they were twice violators of the law.
    Mr. Fine. They were violators of the law. That is correct.
    Senator Coburn. Multiple times.
    Mr. Fine. I don't know how many of them were in that 
category, but I believe there were some in that category.
    Senator Coburn. But the fact is they had already proven a 
disdain for the law.
    Mr. Fine. They had violated immigration law. That is 
    Senator Coburn. Okay. I do not see that any different than 
any other law. They had demonstrated a disdain for the law 
because they had, in fact, violated the law. Is that correct?
    Mr. Fine. That is correct. They had violated immigration 
    Senator Coburn. I don't have any other questions, Mr. 
    Chairman Specter. I was talking to Senator Kyl about 
asbestos. Every now and then we have another matter we have to 
be concerned with.
    Senator Coburn. I have no additional questions.
    Senator Leahy. Boy, do I miss those hearings, Mr. Chairman.
    Chairman Specter. Well, it has been a busy Committee. 
Senator Kyl and I are coming to grips with one of the tough 
issues on asbestos, and pardon me for taking 10 seconds out.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman, and thank you 
for holding this hearing. I believe that the long-term 
detention of so-called enemy combatants at Guantanamo Bay is 
one of the most important national security and civil liberties 
issues facing us today. I have been concerned for a long time 
that Congress has not done as much oversight on this issue as 
it should, so I do appreciate hearing from these witnesses.
    Mr. Chairman, the situation at Guantanamo Bay has become so 
troubling that a growing chorus of people are calling for that 
facility to be shut down entirely. Now, it may be that the word 
``Guantanamo'' has become so synonymous in the Arab and Muslim 
world with American abuses that we must close the prison down. 
But we did not have to reach this point. If the administration 
had not argued that these detainees were not subject to the 
Geneva Conventions, if this administration had not argued that 
these detainees had no right to counsel or to make their case 
in Federal court, if this administration had not insisted on 
trying the few of these detainees who are charged with crimes 
in military commission lacking basic due process, if this 
administration had not sought to exploit every single ambiguity 
in the law to justify its unprecedented actions, we would not 
be where we are today. We would not even be talking about 
closing Guantanamo.
    So when we talk about closing down this facility, let us 
remember that the problem is not just Guantanamo. The problem 
is an administration that thinks it does not have to play by 
the rules. Wherever these detainees are held, they must be 
accorded basic due process rights and treated humanely, 
pursuant to universally respected standards. And I would ask, 
Mr. Chairman, that my complete statement be included in the 
    Chairman Specter. Without objection, it will be made a part 
of the record.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Senator Feingold. Admiral McGarrah, many of the prisoners 
at Guantanamo Bay were first detained by the U.S. Government 3 
years or more ago on the theory that they are enemy combatants 
subject to indefinite detention. In Judge Joyce Hens Green's 
recent decision finding the procedures of the Combatant Status 
Review Tribunals unconstitutional, she noted that the 
Government did not formally define the term ``enemy combatant'' 
until July 2004.
    If the U.S. Government did not formally define who was an 
enemy combatant until 2004, on what basis did it detain the 
hundreds of individuals picked up and transferred to Guantanamo 
Bay prior to that time?
    Admiral McGarrah. Senator, I cannot comment on the 
definitions that were used in prior reviews. I can only comment 
on the process for which I was responsible for. I would defer 
to the Department of Justice for legal definitions.
    Senator Feingold. General, do you have an answer to what 
basis these folks were held on if the term was not defined 
until later?
    General Hemingway. Senator, I was not responsible for 
making that. As far as my view at the present time, they are 
held because they are unprivileged belligerents who have been 
removed from the battlefield.
    Senator Feingold. Mr. Wiggins, could you answer?
    Mr. Wiggins. Would you repeat the question, please?
    Senator Feingold. Yes. Given the fact that the term ``enemy 
combatant'' was not defined until years later, on what basis 
were the hundreds of detainees held prior to that time? What 
was the basis?
    Mr. Wiggins. I don't know the answer to that question, 
    Senator Feingold. Thank you.
    Admiral, Judge Green's decision also stated that the 
Government attorney in the case conceded that under the U.S. 
Government's definition of enemy combatant, ``a little old lady 
in Switzerland who writes checks to what she thinks is a 
charity that helps orphans in Afghanistan, but what really is a 
front to finance al Qaeda activities'' could be considered an 
enemy combatant. Do you agree with that?
    Admiral McGarrah. Sir, that was extracted from the body of 
evidence in that particular case and was not the sole factor in 
that determination. Our panels looked at all the information 
available in the Government's possession and made the 
determination based on a preponderance of evidence standard.
    Senator Feingold. But do you agree with the conclusion that 
a person could be categorized in that way?
    Admiral McGarrah. Sir, I agree with the conclusion that an 
enemy combatant status designation could be made based on a 
view of all the evidence if the preponderance of evidence 
indicated that that classification was appropriate.
    Senator Feingold. All right. Mr. Wiggins, several witnesses 
on the second panel have submitted written testimony raising 
concerns that in the tribunal set up to try or evaluate the 
status of detainees at Guantanamo Bay, the Government may rely 
on evidence obtained through torture or coercive means. As 
Assistant Attorney General for Civil Rights at the Justice 
Department, doesn't that give you pause?
    Mr. Wiggins. Senator, the President and the Attorney 
General have made clear that the United States does not condone 
nor will it commit torture and that we will seek out and punish 
those who commit such acts. Beyond that, I cannot respond.
    Senator Feingold. But what about the reliance on evidence 
obtained through torture or coercive means? As a Justice 
Department official, doesn't it give you pause that we might 
use such evidence?
    Mr. Wiggins. The training manual for al Qaeda encourages 
them to allege mistreatment. We take every--the military, at 
least, as do we, take every allegation seriously. They look 
into it. But the tribunals are free to test the weight of that 
evidence. They make the decision based on the weight of all the 
evidence that they have. It would include perhaps in some cases 
evidence where a detainee has alleged that it was a product of 
mistreatment. But it is up to the tribunal to determine whether 
to accept that evidence or not.
    Admiral McGarrah is more familiar with the details of the 
cases, but it is not uncommon.
    Senator Feingold. I think the question is fairly 
straightforward. I don't think that is much of an answer. The 
question is whether evidence obtained through torture is 
something that ought to give somebody in our United States 
Justice Department pause. I think it would give you pause.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Sessions?
    Senator Sessions. Mr. Chairman, the thing that troubles me 
most about this hearing is that I believe it conveys a 
completely incorrect vision of how prisoners are being handled 
who are apprehended by the United States Armed Forces. And we 
are focusing on problems and due processes and things that 
suggest that these prisoners are being tortured, that they are 
being abused in unconscionable ways and suggesting to our 
enemies around the world that this is occurring, and they are 
using that information to promote their own agenda to kill 
American soldiers. And we are placing them at greater risk, and 
we are making it more difficult for our policy to be 
    So I feel very strongly that this is a legitimate hearing 
to find out how people are being held, but to suggest that our 
activities, as one member of the new left compared it to--or 
the left, compared it to the gulag of our time, where, as the 
Chairman knows, 30 million people were killed in Soviet 
prisons. And we had 700 in Guantanamo, and not a single one has 
died. Not a single one has been shown to be seriously injured. 
So I think we need some perspective here.
    We have high standards. We prosecuted people who violated 
prisoners. We cashiered out a fine Army colonel who fired a gun 
near somebody's head in combat to try to get information to 
save his life. We prosecuted one officer who was found to be 
innocent. We prosecuted the people at Abu Ghraib, and they said 
the higher-ups were involved. And they had their trial, and 
they never showed any higher-ups ordered them to do that. Just 
like the evidence was from the beginning.
    I am concerned about the tone of this hearing. First of 
all, our policy has been to treat detainees humanely, 
consistent with the principles of the Geneva Convention, even 
though they are unlawful combatants or, as General Hemingway 
used the phrase, ``unprivileged belligerents.'' You know what 
that means? That means because they did not conduct their 
warfare against the United States consistent with the rules of 
war, they are not entitled to the protections of the Geneva 
Convention. They do not apply to them.
    Is that not right, General Hemingway, that if people come 
into this country surreptitiously, conduct activities to bomb 
civilians against the rules of war, they are not entitled to 
the protections of the Geneva Convention?
    General Hemingway. That is precisely my position.
    Senator Sessions. And we have not violated a treaty, 
therefore, if we do not treat each one of these prisoners 
precisely in accordance with all the language in the Geneva 
Convention that provides for libraries and things of that 
nature. I think that is important for us to know.
    They are provided more due process than required, but the 
most important point here for us to remember, these are not 
people charged with bank fraud in the Southern District of New 
York, American citizens entitled to a Federal court trial. They 
are unlawful combatants, and they may be detained under the 
rules of war until the war is over. And we know that they 
present a danger to us. We know at least 12 who have been 
released have been re-apprehended for attacking the United 
States of America.
    We spent $109 million building a new facility in 
Guantanamo. I visited the old temporary facility, and they 
showed me the site where the new one would be. It would make a 
magnificent resort. It is on level land. It sits right out on 
the water. It is a beautiful site. We spent a lot of money on 
it; $42 million more is going to be spent to upgrade it. We are 
spending $140 million to improve housing and detention 
facilities in Iraq and Afghanistan.
    This country is not systematically abusing prisoners. We 
have no policy to do so, and it is wrong to suggest that, and 
it puts our soldiers at risk who are in this battle because we 
went them there. And we have an obligation to them not to make 
the situation worse than it is. If we made errors, we will 
bring them up and we will prosecute the people. But to suggest 
that we are in wholesale violation of the rules of war I 
suggest is wrong.
    Mr. Chairman, there are 520 individuals in Guantanamo 
today; 234 have been transferred out 164 have been released 
outright; and 67 have been handed over to another government.
    My time has expired, but I would just say that we have 
heard today that these individuals were screened before they 
were brought to Guantanamo; 10,000 have been detained. Only 
five, six, seven hundred have been brought to Guantanamo. They 
were screened before they were sent there to make sure that 
they were dangerous. We do not have any interest in bringing 
somebody, frivolous nature, to house in Guantanamo. It is a 
burden on our military. They do not want that.
    So I think some of them are entitled to be prosecuted, as 
they were in the Ex Parte Quirin case, approved by President 
Franklin Roosevelt and the United States Supreme Court for 
violations of rules of war, and some of them needed to be 
executed. And I assume that when this dust settles on some of 
these court hearings, we will be moving forward with that if 
they deserve it. If they don't, so be it.
    Thank you, Mr. Chairman.
    Chairman Specter. Well, thank you very much, Senator 
    As I said at the outset on the parameter, we are looking at 
the procedures here. The Committee is taking up about 15 
Supreme Court opinions--one plurality, two five-person 
opinions, and a bunch of concurring opinions, and a bunch of 
dissenting opinions, and then three district court opinions. 
And it is a genuine crazy quilt to try to figure out where the 
due process rights lie. The Supreme Court has said there are 
due process rights. And I think we have done a fair job today 
in staying away from the questions of torture, the questions of 
mistreatment. We have been pretty much within the parameter. 
There have been some comments--
    Senator Sessions. Well, these fine men in uniform here 
today and those out there at risk in these prisons I think have 
been maligned, frankly, I think unfairly.
    Chairman Specter. Well, and we are looking at trying to 
keep some more. We are questioning why they released some on a 
promise that they would not go back to war and what good that 
kind of a promise was. And I think that some Congressional 
input is salutary. We are going to have a lot of work to do 
following this hearing with the military, with the military 
commissions, and with the Department of Justice in the 
parameters and definitions and the procedures. And we are going 
to have a second panel which will get into some of these 
questions in some greater detail.
    There is no doubt that when you talk about evidence, you 
are not talking about evidence in a criminal trial or something 
in the United States District Court. But the question is how 
much and right to counsel. We have heard testimony about right 
to counsel, and these are issues which the Constitution says 
are for the Congress. And to read the opinions of the Supreme 
Court Justices in the way we have left them hanging trying to 
figure out where to go piece by piece, it is our 
responsibility, and to make these judgments we have to know 
much more about the facts.
    Senator Sessions. Mr. Chairman, I would just agree that it 
is fine for us to inquire into this, but I would note in the 
history of warfare, we have not provided trials to prisoners 
who have been seized on the battlefield. That has been left to 
the military to handle.
    Chairman Specter. Senator Kohl?
    Senator Kohl. Thank you, Mr. Chairman, for holding this 
hearing. The stories coming out of the detention center at 
Guantanamo Bay continue to harm our image around the world. 
Guantanamo does not represent the America we know. Instead, it 
stands in stark contrast to the values that our Nation 
    Since the first prisoners were wheeled off the plane in 
January 2002, the detention center in Guantanamo has been on 
trial in two courts: our Federal courts and the court of public 
opinion. It has not fared very well in either. Indefinite 
detention of prisoners in Guantanamo has failed the test of 
fundamental fairness in our Federal courts.
    Of great importance also is the fact that Guantanamo has 
proved to be a failure in the court of world opinion. To be 
sure, the goal is not to win a popularity contest. Of course, 
the goal is to defeat terrorism. Yet to win the war on 
terrorism, we must engage in and win the battle of ideas in the 
Muslim world.
    Guantanamo is impeding our efforts to win this war of 
ideas. Shortly after 9/11, hundreds of people gathered in the 
streets of Iran and other countries around the world to honor 
the victims of those horrific attacks. Support for the United 
States at that time was at an all-time high. Yet today, less 
than 4 years later, we see a much different picture. Instead, 
it is anti-Americanism that has never been higher. The alleged 
abuses and incommunicado detentions at Guantanamo which have 
come to define the United States around the world eroded that 
support, adding fuel to the fire of anti-Americanism and making 
it easier for those seeking to do us harm to enlist recruits 
for their cause.
    We believe that security and adherence to the rule of law 
are not mutually exclusive principles. We have the best justice 
system in the world, and I believe that we can find a way to 
make this work. Nobody is advocating the release of suspected 
terrorists. In fact, quite the opposite, they must be detained 
or prosecuted. But this must be done in a way that is 
consistent with our values, and there is growing realization 
that the policies Guantanamo has come to represent should not 
    It is important to remember that Guantanamo is in large 
part a symbol. It is a symbol of bad acts and misguided 
policies that must be reviewed immediately. So I commend 
Senator Biden for calling for an independent commission to take 
a close look at Guantanamo and make recommendations on how to 
move forward. I believe this will lead us down a path toward 
fixing what is wrong with Guantanamo and moving us today a 
system that can withstand international scrutiny as well as 
keep us safe from terrorist threats.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kohl.
    Thank you very much. It has been a lengthy panel--
    Senator Leahy. Mr. Chairman?
    Chairman Specter. Senator Leahy?
    Senator Leahy. I was just wondering if I could do a couple 
of quick follow-ups.
    Chairman Specter. Sure.
    Senator Leahy. We have talked about these people being held 
as being captured on the battlefield. Admiral, you said this is 
a very broad definition of ``battlefield.'' Am I correct that 
some of the detainees were captured outside Afghanistan? Is 
that correct?
    Admiral McGarrah. Yes, sir, that is correct.
    Senator Leahy. And you are going to supply for the record 
the places they were captured?
    Admiral McGarrah. We will follow up with you on that issue, 
    Senator Leahy. But you will supply the places where they 
were captured.
    Admiral McGarrah. That is outside my responsibility, but I 
will make sure that that gets referred to the right people, 
    Senator Leahy. I appreciate that. We had three people 
arrested in the United States who were designed at enemy 
combatants by the President. I mention that because the 
battlefield is not somebody who is out there necessarily in 
immediate armed combat with us. It seems to be the whole globe 
is the battlefield. Not all the detainees were captured during 
active combat. Am I correct in that, General Hemingway?
    General Hemingway. I could not give you an accurate 
statement on that, Senator, because I have not reviewed the 
files of every single one. The only ones I have looked at are 
those who have been referred for trial by military commission.
    Senator Leahy. Is it your understanding that all the people 
there were in active combat?
    General Hemingway. It is not my understanding, and I cannot 
give you an accurate assessment of that because I have not 
looked at those files, and I would not want to speculate.
    Senator Leahy. Thank you.
    Inspector General Fine, I want to thank you for your 
efforts over the past year to produce a declassified version of 
your investigation of FBI steps, many would say failures, 
leading up to September 11th. I know you originally produced a 
report last year. Your efforts to declassify it prior to the 
election had failed, but Senator Grassley and I, among others, 
requested a public version be released. It was released last 
week. I just wanted to publicly thank you. I know you worked 
hard to have that happen. I know both Senator Grassley and I 
appreciate it.
    You are currently conducting an investigation of the FBI's 
action at Guantanamo, what steps the FBI agents took to prevent 
the mistreatment of prisoners report misconduct. Does your 
investigation cover the question of the FBI's reporting of 
complaints to DOJ, Department of Justice lawyers and then what 
the Department of Justice reported to the Department of 
    Mr. Fine. Yes, Senator, our investigation is looking into 
what the FBI did, what they observed, what reports they made 
and how they were handled.
    Senator Leahy. And have you interviewed the four Department 
of Justice lawyers who, according to FBI e-mail, received the 
FBI complaints?
    Mr. Fine. We have interviewed some Department of Justice 
officials. We are in the middle of our investigation, so I 
don't believe we have interviewed all the people we need to.
    Senator Leahy. Do you know when a preliminary result of the 
inquiry might be available?
    Mr. Fine. It would be impossible for me to predict that. We 
are going to do it as expeditiously as we can and we have 
allocated substantial resources to it.
    Senator Leahy. Thank you, Mr. Chairman, and I will count on 
Admiral McGarrah and General Hemingway to follow up with 
answers to the questions I have asked. We will refine those for 
you more if you would like.
    Thank you, Mr. Chairman.
    Chairman Specter. Senator Biden asked me to say publicly 
that he has some questions for the record, and there may be 
some other Senators who will submit questions for the record.
    Senator Cornyn. Mr. Chairman, may I be permitted just a 
couple of very quick questions?
    Chairman Specter. Yes, Senator Cornyn.
    Senator Cornyn. I very much appreciate it. Thank you very 
    Mr. Chairman, I am advised that we have had 11 members of 
the United States Senate visit Guantanamo Bay, and I was 
privileged to be one of those Senators who had a chance to 
actually see with my own eyes and to talk to the people in 
charge there, as well as to observe the detainees and talk to 
some of the teams that conduct interrogations. It was a very 
edifying experience for me, and I would think that, of course, 
any of us who have not yet had an opportunity to do that would 
benefit from that personal trip to Guantanamo Bay.
    I would just agree with the Chairman when you say that the 
Supreme Court opinions and the Federal court opinions in this 
area are a crazy quilt, and that we are struggling on this 
Committee to try to figure out exactly what the rules are and 
what the parameters should be and what the court has said.
    I would suggest that we ought to provide the same 
opportunity for both the Department of Defense and the 
administration in trying to deal with what in many ways is an 
unprecedented set of circumstances. We ought to engage in a 
presumption of innocence rather than the presumption of guilt, 
which our enemies seem to apply whenever a charge is made 
against the United States as regards Guantanamo Bay and our 
treatment of detainees.
    There have been ten different investigations conducted by 
the Department of Defense into interrogation practices and the 
alleged abuses and some factual instances of abuses at Abu 
Ghraib. But this has been extensively reviewed by impartial 
tribunals and I think that, in the main, our Department of 
Defense and people in charge of this facility have conducted 
themselves admirably under difficult circumstances.
    Thank you for giving me a couple of minutes.
    Chairman Specter. Thank you, Senator Cornyn. There is no 
doubt about the need for inputs, very heavy and very 
substantial, from the Department of Defense and from the 
Attorney General.
    There is one quotation that I did not start with, but I 
think it is worth just a moment of the Committee's time, even 
though it is late, and this is Justice Scalia urging us to deal 
with this issue. He puts it this way: ``There is a certain 
harmony of approach in the plurality's making up for Congress's 
failure to invoke the Suspension Clause and making up for the 
Executive's failure to apply what it says are needed 
procedures, an approach that reflects on what might be called a 
Mr. Fix It mentality. The plurality seems to view it as a 
mission to make everything come out right, rather than merely 
to decree the consequences as far as individual rights are 
concerned, of the other two branches' actions and omissions. As 
the legislature failed to suspend the Writ in the current dire 
emergency, well, we will remedy that failure by prescribing the 
reasonable conditions that a suspension should have been 
included. And as the Executive failed to live up to those 
reasonable conditions, well, we will ourselves make up for that 
failure so that this dangerous fellow, if he is dangerous, need 
not be set free. The problem with this approach is not only 
that it steps out of the Court's modest and limited role in a 
democratic society, but that by repeatedly doing what it thinks 
the political branches ought to do, it encourages their 
lassitude and saps the vitality of government by the people.''
    ``Lassitude'' is not a word too often used for the Congress 
and probably ought to be used more often. But that is what we 
are confronting, with the DOD and the military and the 
Department of Justice grappling with these issues and the Court 
proliferating all over the place. ``Crazy quilt'' are the best 
words for it. So we have our work cut out for us, among a 
number of other subjects.
    Thank you for agreeing to stay, General Hemingway. Admiral 
McGarrah, to the extent you could stay, too, it would be 
    We turn now, finally, to the second panel. Our first 
witness is Mr. Joseph Margulies, a principal in the firm of 
Margulies and Richman, and a trial attorney with the MacArthur 
Justice Center at the University of Chicago. He is the lead 
counsel in Rasul v. Bush, involving the Guantanamo detainees. 
He has a very distinguished academic and professional record 
which will be included in the record in full.
    Mr. Margulies, if you would step forward, along with former 
Attorney General William Barr, Lieutenant Commander Charles D. 
Swift and Professor Stephen Schulhofer, we will begin the 
second panel.
    Mr. Margulies, thank you for joining us. As soon as you are 
seated, the clock is going to start.

                     MINNEAPOLIS, MINNESOTA

    Mr. Margulies. Senator Specter, Senator Leahy, Members of 
the Committee, the prisoners at Guantanamo can be divided into 
two categories. One is very small, one is very large. One 
category has four people; that is, as we heard this morning, 
the group of people who have been charged by military 
commissions. That category also includes another seven who have 
designated as potential candidates for prosecution, but we are 
talking about a total universe in the military commission 
context of about a dozen people.
    Lieutenant Commander Swift is going to talk about that 
group, but the rest, and the overwhelming majority of the 
people at Guantanamo Bay have never been charged with any 
wrongdoing. They have never appeared before any court of law. 
They have received nothing but a hearing before the CSRT, which 
you heard about this morning, or the Combatant Status Review 
Tribunal. The position of the administration is that this is 
all the process that they get, and that now they may be held 
for as long as the President sees fit, under any conditions the 
military may devise.
    You heard this morning how the CSRT operates in theory; 
that is, how it is written to operate. I want to talk about the 
reality. I want to talk about the reality because while my 
written testimony addresses the deficiencies of the CSRTs in 
some detail, what was absent from the discussion this morning 
and from the written testimony is a focus on an individual, and 
there are real people at Guantanamo and I would like to turn 
our attention to them.
    One of my clients is a man named Mamdouh Habib. Mr. Habib 
is Australian. In October of 2001, he was arrested not on the 
battlefield, not in Afghanistan, but in Pakistan by Pakistani 
police. They turned him over to the United States, who, after a 
period of a couple of weeks, bundled him onto a U.S. military 
plane in Pakistan and flew him to Cairo, Egypt, where he was 
held for 6 months. There are no disputes about the facts that I 
am relating in that regard.
    During that 6 months, Mr. Habib was subjected to ingenious 
tortures. I realize that there are some reservations about 
making this into a hearing about torture. I say this only as it 
bears on the CSRT proceeding, however. Let me describe just one 
of the techniques that was used during that six weeks.
    Mr. Habib's captors would bring him to a small windowless 
room. He was brought there handcuffed behind his back. The room 
was dark, and water starts to pour into the room and he watches 
as the water rises up past his knees, past his waist, rising 
above his chest, past his shoulders, finally past his neck. Mr. 
Habib, held there, has no idea when or if this water will stop. 
When it finally stops, it is past his chin and Mr. Habib can 
keep his mouth above the water only if he stands on the tips of 
his toes, and his Egyptian captors left him there for hours.
    Other tortures that Mr. Habib endured were considerably 
less creative. They beat him, they kicked him, they shocked him 
with something that would be fairly described as a cattle prod. 
Over the course of 6 months, Mr. Habib, as any of us would have 
expected, confessed to all manner of allegations. He told me he 
signed everything--and I learned this from him when I went down 
to talk to him at Guantanamo--he told me he signed everything 
that they put in front of him. Some of the papers he, in fact, 
signed were blank. He has no idea what was later written down 
on them.
    The U.S. Government, Senators, has never denied Mr. Habib's 
allegations in this regard, which are now a matter of public 
record. In fact, quite the contrary. The State Department has 
protested repeatedly and for years, including post-9/11, 
against state-sponsored torture in Egypt. And many of the 
things that happened to Mr. Habib have been documented to have 
happened to other people as well.
    Senators, my point is simply this: The CSRT relied on Mr. 
Habib's statements given in Egypt to support its conclusion 
that he was an enemy combatant. In fact, I have reviewed the 
allegations against Mr. Habib, and as far as I can tell and as 
far as the Government has disclosed in court, the CSRT had 
nothing except Mr. Habib's own uncorroborated statements made 
during interrogations. My point would just be this: Any process 
that relies information secured in this way is just not worthy 
of American justice. It is as simple as that.
    So I am here to tell you three things, in addition to 
trying to answer whatever questions may be posed of me. I want 
to impart to you only three things. One, if you look at them 
fairly, the CSRTs are a sham. As I said to Judge Green, and she 
agreed with me, in the argument of December 1st of 2004, they 
mock this Nation's commitment to due process and it past time 
for this mockery to end.
    Second, these prisoners must have their day in court. In 
response to questions, I can address the difference between 
these prisoners and those 400,000-plus who were held in World 
War II and given the benefits of the Geneva Conventions. It is 
past time for them to be held simply on the undifferentiated 
characterization of them as the worst of the worst. If the 
administration can prove in a Federal habeas hearing that these 
people belong in custody, then so be it. But bring that proof 
on. They have been there more than 3 years and it is time to 
put up or shut up.
    Third, respectfully, Congress must get to the bottom of 
this. The American people simply have to know what it is that 
is going on. We cannot tolerate any more black holes and we 
have a model for what we should do. We need an independent, 
bipartisan inquiry to figure out just what the administration's 
detention policy is. What is it all about? What has been done, 
to whom, on whose authority, and at what facilities?
    I would close with these brief comments. Mr. Habib, 
Senators, is now out of custody, and let me tell you how that 
happened. When I learned the information that I have related to 
you today, I filed it in the district court of the District of 
Columbia, and those papers became public the first week of 
    The next day, they appeared in a front-page article in the 
Washington Post, and after the front-page coverage it became 
apparent that Mr. Habib's rendition would become a subject of 
inquiry within the Federal court. Five days later, after having 
described Mr. Habib, as they describe all of them, as the worst 
of the worst and dangerous terrorists--5 days after the account 
of his rendition became public, the Department of Defense 
announced that Mr. Habib would be released.
    I flew home with him. So far as I know, I am the only 
attorney who has been allowed to accompany his client home from 
Guantanamo. At the request of the Australian government, I went 
from Miami to Guantanamo, where we picked up Mr. Habib, and we 
flew to Sydney and I had the privilege, Senators, to be with 
Mr. Habib when he was reunited with his wife, whom he had not 
seen for more than 3 years, at the airport in Sydney. And when 
he saw her, he almost collapsed on the tarmac. I will never 
forget it. It is an experience I will never forget and one of 
the most memorable I have ever had as a lawyer and I think 
about it again today in this hearing.
    Thank you for your time.
    [The prepared statement of Mr. Margulies appears as a 
submission for the record.]
    Chairman Specter. Thank you, Mr. Margulies.
    We have had another vote, so we will excuse ourselves for 
as brief a period of time as we can go and vote. For those of 
you who don't know, we are up on the energy bill, and we will 
return as soon as we can.
    Senator Leahy. With as much energy as we can muster.
    [Recess 12:06 p.m. to 12:29 p.m.]
    Chairman Specter. The hearing will resume. Our next witness 
is Hon. William Barr, who has a very distinguished record, most 
specifically as Attorney General of the United States from 1991 
to 1993, and his now Executive Vice President and General 
Counsel for Verizon.
    When the Department of Defense suggested former Attorney 
General Barr, I said excellent, he has got a lot of experience.
    Thank you for joining us, Mr. Attorney General, and we look 
forward to your testimony.


    Mr. Barr. Thank you, Mr. Chairman. It is good to see you 
and members of the Committee.
    Rarely have I seen a controversy that has less substance 
behind it. Frankly, I think the various criticisms that have 
been leveled at the administration's detention policies are 
totally without foundation and unjustified.
    I would like to distinguish between three different kinds 
of activity that are underway in Guantanamo. First, Guantanamo 
is a facility for holding enemy combatants are that are 
captured in the battle theater. We have been fighting wars for 
230 years. As the Supreme Court recognized, fighting wars is 
about destroying the enemy's forces either by killing them or 
capturing them. And when you capture them, you detain them, and 
we have been holding enemy combatants, as I say, for 230 years 
in various facilities.
    There is nothing punitive about it. This is not a legal 
proceeding. There is no need to bring charges. They are being 
held because they were identified on the battlefield as threats 
to our forces and to our military mission. That determination 
has already been treated as a military determination, and it is 
not one that gives foreigners who encounter our troops on the 
battlefield due process rights to hearings and evidentiary 
hearings as to whether they were, in fact, or not enemy 
combatants. There has never been a case to suggest that. In 
fact, the Supreme Court cases say that foreigners outside the 
United States with no connection to the United States do not 
have due process rights.
    Now, I would like to analogize to World War II. We held 
over two million Axis prisoners during World War II. Over 
400,000 were here in the United States, in camps, in Utah, 
Texas and Arkansas. And it wasn't cut and dry. As a matter of 
fact, there was a lot of confusion about who was who because we 
seized a lot of Eastern Europeans and Asians who had been 
fighting in the Soviet army, captured by the Germans and 
conscripted into forced labor battalions who were claiming, 
hey, I am a Soviet citizen, I am not an enemy combatant.
    They didn't get into U.S. courts. They didn't get lawyers. 
They didn't get hearings as to are you a member of the 
Werhmarcht or not. They were detained until the end of 
hostilities. So there are no due process rights for foreigners 
encountered on the battlefield.
    However, this should be a moot issue because the 
administration has provided--for the first time I am aware of 
in United States history, is providing an adversarial process 
to each of these individuals to contest whether or not they 
are, in fact, enemy combatants. This is the CSRT process, and 
that comports with the process alluded by the Supreme Court in 
Hamdi that should be followed for American citizens here in the 
United States. So they are getting whatever due process rights 
could theoretically exist, and I submit none do. They are 
getting more than ample process.
    The second issues goes to the Geneva Convention. I hear a 
lot of pontificating about the Geneva Convention, but I don't 
see what the issue is. The Geneva Convention applies to 
signatory powers. Al Qaeda hasn't signed it. They are not 
covered by the Geneva Convention, period. With all this 
pontificating, I haven't heard anyone allege any set of facts 
that would change that.
    The President absolutely correct in saying they are not 
entitled to protection. Does this mean they are without rights? 
No. If you are not covered by the Geneva Convention, then you 
are held in detention under the common law of war and you are 
treated humanely. But to say that terrorist like al Qaeda are 
entitled to protections of the Geneva Convention demeans 
international law, the Geneva Convention and our troops.
    The third point I want to make is about military tribunals. 
I guess we have come a long way because when the President 
first put out his order on military tribunals, there was all 
this strum and drone and, gee, this is a big end run around 
Article III courts and the world is coming to an end and this 
is unprecedented and this is a big deal.
    Well, the debate seems to have recentered a bit. I haven't 
heard any serious argument that these cases belong anywhere 
else than military tribunals. Now, military tribunals are 
different than this issue of whether you are an enemy 
combatant. As to some set of people in our custody, we will 
choose to bring prosecutions. That is a punitive action and we 
will try them for violations of the laws of war. Historically, 
that has always been done by military courts.
    So, for example, in World War II when we tried German 
soldiers for atrocities like the massacre at Malmady, they were 
tried not in Article III courts here in the United States. They 
were tried by military courts. And the President has quite 
rightly, consistent with 230 years of history, set up military 
courts to try violations of the laws of war.
    Part of what is going on here, I think, in this debate is a 
fundamental misapprehension between two different kinds of 
constitutional activity. One is law enforcement and the other 
is waging war. They are different, and it is fundamentally 
incompatible with our Constitution and constitutional 
principles to try to take the strictures on executive power 
that exist in the law enforcement arena and carry them over and 
try to apply them when the country is waging war against 
foreign foe.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Barr appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Barr.
    Our next witness is Lieutenant Commander Charles Swift, who 
is defense counsel in the Office of Department of Defense 
Military Commissions. He is currently detailed to represent 
Salim Hamdan, who is facing trial by the military commission.
    Lieutenant Commander Swift is a graduate of the United 
States Naval Academy and has a law degree from the University 
of Puget Sound, graduating cum laude there. He has been 
affiliated with the Navy's Judge Advocate General Corps after 
returning to active service in 1994.
    Thank you for your service, Commander Swift, and we look 
forward to your testimony.

                   DEFENSE, WASHINGTON, D.C.

    Commander Swift. Mr. Chairman, members of the Committee, as 
the Chairman stated, my name is Lieutenant Commander Charles 
Swift and I am with the Office of Military Commissions for the 
past 2 years and I represent Salim Ahmed Hamdan. I also was in 
line to represent Mr. Habib, until the press releases regarding 
his treatment caused his--or charges were not approved against 
him following those press releases.
    My testimony today is made in my capacity as Mr. Hamdan's 
attorney. And, as such, it does not necessarily represent the 
opinions of the Department of Defense or the Department of the 
    I first got to Military Commissions in March of 2003. Prior 
to coming to the commissions, I had absolute respect for 
military justice. I had worked in it. I am extremely proud of 
our military justice system. So it was surprising to me to get 
to Military Commissions and during my in-brief be told Mr. 
Haynes, the general counsel, that Mr. Lloyd Cutler, who has 
participated in the Quirin Commission as a prosecutor, one of 
the junior people on it, considered that commission that only 
thing in his distinguished legal career of which he was not 
proud. I couldn't really put those two things together--
military justice and not being proud. After 2 years at the 
Military Commissions, I regret to say I can.
    I met Mr. Hamdan in December of 2003. I was detailed 
pursuant to an order or a request by the chief prosecutor. That 
request said that the purpose in detailing me was to negotiate 
a guilty plea. It also said that my access to Mr. Hamdan was 
contingent upon the fact that he engage in those negotiations 
toward a guilty plea and that if he didn't, then we wouldn't 
have access anymore. In my military career as an attorney, I 
had never been detailed to represent somebody under those 
    When I met him, he had already been in solitary confinement 
for more than 45 days. I call it solitary confinement because 
Mr. Hamdan was by himself. He was in a windowless room where 
ventilation was provided only by an air conditioner and where 
there was no natural lighting. He exercised--and the guards 
confirmed this--only at night for about 30 minutes. He didn't 
see any other detainees at any other time, and he was already, 
in my observation--I am not a physician, but in my observation, 
under extreme mental stress.
    I had to tell him that the only way I could guarantee that 
I would see him again was if he agreed that we were going to 
plead guilty to something. To do that ethically, I decided that 
the only way to do that was to tell him I can't guarantee you--
I don't know what the Supreme Court is going to say, but if I 
am not allowed to see you--
    Chairman Specter. This is a guilty plea to what?
    Commander Swift. War crime unspecified, sir.
    That if I am not allowed to see, I will file a habeas and a 
mandamus writ in Federal court on your behalf. I don't know 
that that would work, but that is what I will do.
    I subsequently requested speedy trial. I had requested that 
in February of 2004. General Hemingway responded in March of 
the same year saying that--I requested it under the UCMJ 
because Congress had said in passing Article 36 for commissions 
that the standards would never be less than the UCMJ. So I felt 
that surely a speedy trial would be available. I was told no, 
and it wasn't until I filed a suit in Federal court that Mr. 
Hamdan got charges. In fact, it was only when the Supreme Court 
guaranteed that that option existed.
    The problem with military commissions ultimately, sir, 
comes somewhat to what General Hemingway said, and I have the 
most respect for him. He said I am here on behalf of here on 
behalf of the Government. The problem is that General Hemingway 
advises General Altenburg, who is the ultimate judge. A 
military commission under the rules doesn't have the ability to 
make any final ruling. They have to send it to General 
Hemingway for legal review. But he is also here as the 
prosecutor; he has already made up his mind. We can't say that 
this is an independent and fair process. It is not befitting of 
America. If we had the judge also be the prosecutor, would that 
be an American process, sirs and ma'am?
    Thank you. I yield the rest of my time and I would ask that 
you consider my written testimony.
    [The prepared statement of Commander Swift appears as a 
submission for the record.]
    Chairman Specter. Your full statement will be made part of 
the record, Commander Swift.
    Our next witness and final witness on this panel is 
Professor Stephen Schulhofer, Professor of Law at New York 
University. He has authored some 50 scholarly articles and 
books, six books, and his recently published work goes to the 
core of the issues we have here today, called, quote, ``The 
Enemy Within: Intelligence-Gathering, Law Enforcement and Civil 
Liberties in the Wake of 9/11.''
    Thank you very much for coming in today, Professor 
Schulhofer, and we look forward to your testimony.


    Mr. Schulhofer. Thank you, Senator Specter, members of the 
    The issues arising out of the Guantanamo detentions are 
enormously important to our National security because it is 
essential that we be able to convince the world that America is 
fighting for freedom and for human dignity. We can't defeat 
terrorism if we win battles at Tora Bora, but lose the 
cooperation and respect of the world's one billion law-abiding 
Muslim citizens. Guantanamo is hurting us very badly.
    Senator Cornyn, nobody wants to turn loose the dangerous 
terrorists you describe; nobody does. Nobody wants to miss the 
chance to get life-saving intelligence, but we can't let our 
actions create dozens of new terrorists for every terrorist we 
capture, and that is what now seems to be happening.
    I have been asked to focus on solutions to this dilemma. 
That is a problem we have been studying carefully at the 
Brennan Center for the past 2 years. Global terrorism poses 
unique challenges, but when it comes to detention, 
interrogation and trial, we have found no reason to think that 
the traditional institutions used in all prior wars aren't up 
to the task. I should say that again because it is obviously 
not conventional wisdom. In matters of interrogation, detention 
and trial, we have found no reason to think that traditional 
institutions aren't up to the task.
    The principles that should guide our response to Guantanamo 
are basically three. First, we should stick closely to the pre-
9/11 procedures. Doing that will minimize start-up costs. And 
most important, it will give us the legitimacy that has been 
disastrously missing from our detentions at Guantanamo.
    Second, our aim should not be to see how many safeguards we 
can avoid. That is the thinking that has brought us to where we 
are today. We must maximize transparency and accountability. We 
must do that even if the lawyers convince you that it is not 
legally required.
    Third, Congress and the administration need to address 
these issues quickly, but there is no point in doing that in a 
way that will simply re-inflame world opinion. The point of 
acting quickly is to show that we are ready to embrace 
accountability and accept the rule of law, openly administered 
by independent tribunals. Courts and courts martial already can 
do that effectively, particularly with the tools provided by 
the Classified Information Procedures Act.
    With that straightforward solution right at our fingertips, 
it is simply tragic that we are letting ourselves lose this 
propaganda war. It is tragic that we are letting hardened 
terrorists paint themselves as victims and elude the 
punishments that are long overdue, and it is not because 
defense counsel have had the audacity to file motions. That is 
not the cause of this delay. It is because the administration 
is trying to build an entirely new system from scratch.
    In terms of intelligence, Admiral Jacoby has one view that 
you heard read into the record this morning, but let's be clear 
about this. No other country in the Western world claims that 
successful interrogation requires keeping terrorism suspects in 
isolation for years on end. Britain, when it faced a grave 
emergency in Northern Ireland, extended incommunicado detention 
from its normal period, which was 48 hours, to a maximum of 5 
days--5 days, Mr. Chairman. For the Israelis, even in areas 
under military occupation, the detention of suspected 
terrorists before their first court hearing is limited to a 
maximum of 8 days.
    How can we be surprised that the world doesn't buy into 
Admiral Jacoby's view? How can we be surprised that the world 
recoils at incommunicado detentions that are lasting for more 
than 3 years? Congress and the administration should move 
quickly to start cutting our losses. As I mentioned, there is 
no reason to think the traditional war-time procedures can't 
handle the issues. The details are in my written statement.
    That said, some of the key facts are still obscure, and 
``trust us'' is just not an answer that works beyond our own 
borders. So as Senator Biden said, we do need a bipartisan 
study, this one focused on detention, interrogation and trials. 
I know Washington doesn't want another study commission, but 
there may be no other way to demonstrate our commitment to the 
rule of law. I think what is equally important is there may be 
no other way to be sure that our tough-minded practices aren't 
helping the enemy more than they are helping us. The stakes are 
very high and we have to get this right.
    Thank you for your attention.
    [The prepared statement of Mr. Schulhofer appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor 
    We now come to the questioning of the panel, and let me 
begin with you, Commander Swift. When your instructions to 
obtain a guilty plea did not work out, you then represented Mr. 
Hamdan in the habeas corpus proceedings in the United States 
District Court for the District of Columbia. Is that correct?
    Commander Swift. Yes, sir.
    Chairman Specter. And was there any limitation placed upon 
your representation of him there?
    Commander Swift. No, sir, there wasn't. During this entire 
proceeding, I want to assure this panel, this Committee, that I 
have never felt any pressure from my seniors or from my bosses 
or anyone in the military--
    Chairman Specter. So you just proceeded to do a lawyer's 
    Commander Swift. Sir?
    Chairman Specter. You just proceeded to do a lawyer's job?
    Commander Swift. Sir, I proceeded to do the job I believed 
to be as a lawyer and an officer in that situation required.
    Chairman Specter. Is it customary, or are there many other 
cases where a detainee like Mr. Hamdan is provided counsel like 
you, well-trained and versed in the field, with experience and 
    Commander Swift. To my knowledge, two of the cases that 
were cited for commission's proposition are the Yamashida case 
and the Quirin case. In both of those, Colonel Royale brought 
that case to the Supreme Court, and the defense counsel, who 
will go unnamed in the Yamashida case, went so far as to fly 
their petition for habeas to the Supreme Court out on an 
airplane from the Philippines.
    Chairman Specter. There has been testimony here today that 
counsel is available in these proceedings before the military 
commission. To what extent have you found that to be true?
    Commander Swift. Well, there was counsel available at one 
time, sir. The problem is that that time has passed. At its 
height, the Office of Military Commissions and the defense 
counsel's office was six full-time attorneys. As of July 22nd, 
it will be down to one, unless reliefs are identified. I am no 
longer attached directly to the office, in that I went on to 
other orders. I continue to represent Mr. Hamdan.
    Chairman Specter. Would the availability of defense counsel 
impede what Senator Kyl had spoken about here earlier today as 
the interrogation process which needs to be a continuum?
    Commander Swift. I don't agree that it would, sir. After an 
immediate position, my experience--and I can only speak for my 
experience here, sir--is that more times than not, when my 
client has valuable information and there is an opportunity to 
benefit the Government and benefit himself, my immediate advice 
is let's give the information and get the benefit of it.
    Chairman Specter. Let me turn to former Attorney General 
Barr. In the opinion which Judge Green handed down on a series 
of Guantanamo cases, she found deficiencies in the CSRT's 
failure to provide detainees with access to material evidence 
upon which the tribunal affirmed their, quote, ``enemy 
combatant status,'' and the failure to permit the assistance of 
counsel to compensate for the Government's refusal to disclose 
classified information directly to the detainees.
    Mr. Barr, to what extent is it realistic to give detainees 
access to classified information so that they are able to 
defend themselves? You made a comment about this is not an 
adversarial proceeding; the rights are limited. How do you 
balance that out, or is there no balance?
    Mr. Barr. In my mind, it is a prudential judgment by the 
chief executive, the commander in chief, because it is 
preposterous to say that there is some kind of constitutional 
right that the foreign person seized on the battlefield has to 
look into American intelligence during a way.
    I mean, just think about the enormity of that. You know, 
our troops make a judgment that someone is a hostile and then 
we have to have an adversary proceeding and then they get free 
rein into looking into classified material. It is ridiculous.
    Chairman Specter. Let me turn to Mr. Margulies. My time is 
nearly expired.
    Your representation of Mr. Habib certainly was successful. 
Was there any evidence to the extent that you feel free to 
comment about the substance of the Government's charges?
    Mr. Margulies. What I can say is that I have reviewed the 
classified and the unclassified portions of the returns. I can 
only discuss the classified portions to the extent that it has 
become public. For instance, portions of it are discussed in 
Judge Green's decision. If the allegations against him were 
true, he wouldn't be home. If there were an atom's weight worth 
of true to them, he would still be in custody.
    The Department of Defense does not disclose why it is it 
releases. What it does is puts them on a plane and sends them 
home. I am the only person who actually got to go home with 
him, and so we had advanced notice of it. But all we know is 
that they made very strong allegations against him and then the 
facts came out that it appears that those allegations were 
based on statements taken when he was in Egypt. And when that 
fact came out, he was released.
    Chairman Specter. I am past time, which I don't like to be, 
but we are not going to have another round, so I want to follow 
up with you on just one further area, Mr. Margulies.
    Your job as defense counsel is obviously to represent your 
client, to secure his release if you can. But you have heard 
the testimony and you know the circumstances of the problems of 
a terrorist attack and you know the difficulties of producing 
competent evidence and giving detainees access to confidential 
information because of the security problems.
    Can you take a step backward and give us a view as to how 
you would reconcile these differences?
    Mr. Margulies. I can try.
    Chairman Specter. That is too broad a question for now, but 
I will ask you to respond to it. But I would like to ask you to 
respond further when we work through these issues after this 
hearing is over today. This is just the start of a lot of hard 
work on the part of the Committee in trying to figure out what 
our constitutional duty is to establish these rules.
    But what would you say on this tough issue of balance?
    Mr. Margulies. Two things, Senator. One, my colleagues and 
I--and when I say my colleagues, that is the lawyers that I 
have been working with, and there is now a substantial number. 
I have to give a particular nod to the lawyers at the Center 
for Constitutional Rights who have been my colleagues in Rasul 
since the case began, and at Sherman and Sterling here in D.C. 
who have represented the companion case of Al-Odah. We stand 
ready to work with you and your colleagues in whatever capacity 
you want.
    I know Professor Schulhofer can address this as well. 
Regarding your other question, the Federal courts of the United 
States are steeped in the procedures and statutes governing the 
use and dissemination of classified information. We have dealt 
with this problem for decades, and dealt with it successfully 
in terrorism trials.
    We know how to create a process that both comports with the 
requirements of the law and protects national security 
classified information. We have an entire body of statutes--the 
Classified Information Protection Act, or CIPA--that can be 
imported into, either by legislation or by the habeas rules, to 
control the flow of information in habeas proceedings for the 
540 people who are not going to be subject to military 
    The problem is that the CSRTs not only rely on classified 
information that is not shared with the prisoner, but do not 
share it with counsel. So he must rebut--in fact, the burden is 
on him to rebut secret information that is not shared with him 
that he doesn't know about. That is what collectively makes it 
an invalid process.
    Chairman Specter. Okay, thank you very much, Mr. Margulies.
    Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman. Thank you, all four 
of you, for being here.
    Professor, let me ask you a question. I have sort of been 
thinking about this this morning. General Hemingway said one of 
the reasons it took 3 years to begin commissions was because 
they had to build a whole new judicial system.
    Was it necessary to build a whole new judicial system?
    Mr. Schulhofer. Senator, it was not necessary. For people 
who have been captured overseas on the battlefield, we have 
procedures--Army Regulation 190-8--for prompt determinations 
right on the battlefield of their status. We have procedures. 
If they are claimed to be unprivileged combatants, as General 
Barr claimed a minute ago, our own procedures require further 
process because treating them as unprivileged means that they 
don't have the rights to communicate with their families and 
other principals under the Geneva Convention.
    Senator Leahy. Let me follow that up just a little bit 
further because you said if they are picked up on the 
battlefield. Have you heard, as I have, that some of the 
individuals picked up were not captured during combat, but were 
picked up far from any battlefield; I have been told in 
countries such as Bosnia? Does that raise a concern for you if 
that is so?
    Mr. Schulhofer. Absolutely. We know for a fact--even though 
the Government has simply refused to give a direct answer to 
questions about this, we know for a fact that many of the 
people, even people seized in Afghanistan, were not seized by 
our own troops, which was the formulation General Barr 
mentioned. These are people who were seized by warlords in 
Afghanistan and literally sold to us under the claim that they 
had been fighting. That is just Afghanistan for a starter.
    Then we know for a fact that some people were picked up in 
Bosnia. We know for a fact that some of the enemy combatants 
were arrested right here in the United States. One of them was 
arrested at O'Hare Airport in Chicago. One of them was arrested 
by the FBI in Peoria, Illinois. And these people have been 
determined to be enemy combatants on the theory that the entire 
world is a metaphorical battlefield. So we know for a fact that 
that is going on.
    Senator Leahy. It is interesting. I am not looking for 
answer to this, but if the entire world is a metaphorical 
battlefield and we know that we will be facing terrorists as 
long as anybody in this room lives, that gives you an awful lot 
of leeway if you follow these rules.
    Lieutenant Commander Swift, you have been in the military 
for 18 years. You are obviously there as a career military 
officer. Defending suspected terrorists probably doesn't make 
you the most popular person at the officer's club, if I am 
    Commander Swift. I was concerned about that, sir. To 
relate, though--I think that this is incredibly important to 
the military--I went back to my 20th reunion at the Naval 
Academy. One of the people I was kind of worried about seeing 
is a Marine Corps lieutenant colonel who has had an awful lot 
of combat time. He has been in every campaign. And he came up 
to me at the reunion and he looked at me and said, I go out 
there everyday to fight for our freedom on the battlefield; 
don't you do dare stop fighting in the courts.
    Senator Leahy. As the proud father of a former Marine, I am 
delighted to hear that response. When I was a prosecutor, I 
recall always arguing that we get the best defense attorney 
possible. The system works better.
    You heard General Hemingway's testimony this morning about 
the military commissions. Is there anything you would like to 
add to his testimony, or disagree with his testimony?
    Commander Swift. I would start principally with the idea of 
rights. The first thing we do is list rights, but they don't 
read you the last paragraph. The last paragraph says that 
nothing in the instruction that supposedly creates these rights 
actually creates a right in any court. Moreover, they are 
subject to change at any time and cannot be enforced by the 
    Now, to me, a right is something you get to keep and you 
get to have unless due process takes it away from you, not a 
change in the instruction, and it can be enforced. So I think 
when we start with the entire process, when these have been 
listed as rights to you, they are not actually rights. They are 
the current processes and they can be changed at any time and 
they are unenforceable by the accused.
    Senator Leahy. I think I referred to this morning those 
pesky rights. Again, when I was a prosecutor--and Senator 
Specter had far more experience as a prosecutor--those rights 
oftentimes made our life more difficult, but I don't think 
either one of us would ever suggest that we not have them.
    The administration has argued that if the Geneva 
Conventions apply to the war on terror, then members of al 
Qaeda would receive prisoner of war protections and we would 
not be able to interrogate them. One, is that correct? And, 
secondly, what advantages would there be for the U.S. to apply 
the Geneva Conventions to the war on terror?
    Commander Swift. There would be one--just to relate from 
history, sir, the Japanese were certainly considered during 
World War II to be fanatical, willing to die rather than 
surrender. In fact, they had the precursor of suicide bombers, 
the kamikaze pilot.
    Senator Leahy. The battles of Mount Surabachi show that.
    Commander Swift. Yes, sir. The most effective 
interrogations of the Japanese who were captured were conducted 
in accordance with the Geneva Conventions. They were conducted 
by a Marine colonel who was steeped in the Japanese language, 
their philosophy and understanding. By treating them kindly and 
humanely, he undercut the propaganda that they had been fed 
that the Americans were simply out to annihilate the Japanese. 
When they found that not to be true, they cooperated.
    I would also say that as far as applying the Geneva 
Conventions to al Qaeda, I would harken back to what the 
Milliken court said. At the end of the court, it said it makes 
no sense to apply the pains of the law of war to those who 
cannot claim its protections.
    Milliken was a terrorist presumably of his day. He was 
supposed to be supporting an insurrection in the north 
against--overthrow of the army behind enemy lines. They said if 
you are not going to apply the protections of the military to 
him, you can't apply the military law to him.
    If we apply the Geneva Conventions and say we are holding 
ourselves under their accountability, then we can say we are 
going to hold you accountable, too. We cannot start this 
process by saying, well, the Geneva Conventions don't apply to 
you, you have no protections, we don't have to follow them, and 
now we are going to hold you accountable for violating them.
    Senator Leahy. Thank you, Commander. I am proud of your 
response and I think you reflect the feelings of many in the 
military. And I think you are fighting to make sure we have all 
of those rights, all of the military are, and I applaud you for 
upholding them.
    I wonder, Mr. Chairman, could I ask Attorney General Barr 
one question?
    Chairman Specter. Sure. Go ahead, Senator Leahy.
    Senator Leahy. It is always a pleasure to see Attorney 
General Barr here. He is no stranger to this Committee in good 
times and bad. I hope they are mostly good times.
    John Walker Lindh was a U.S. citizen who fought alongside 
the Taliban. To begin with, I am not holding any brief for Mr. 
Lindh, but he was prosecuted in Federal court and he is now 
serving a 20-year sentence. Yasir Hamdi, who was another U.S. 
citizen, was captured in Afghanistan. He was designated an 
enemy combatant and he was held in a Navy brig for more than 2 
years. He was not allowed access to either a lawyer or family.
    The Supreme Court then said he was entitled to a fair 
hearing--hardly a radical ruling from hardly a radical Supreme 
Court. But the administration said, well, rather than give him 
the hearing, we will release him. So one minute, he is too 
dangerous to be allowed access to a lawyer. The next minute, 
all of a sudden he is free to go.
    Quite a bit different, the treatment between Lindh and 
Hamdi. Which case had a better result?
    Mr. Barr. Well, obviously, the Lindh case had a better 
result, but I think you are mixing up two different things 
here. One is the legal regime that applies to American 
citizens, and I think the administration has always taken the 
position and recognized that in any war you will find American 
citizens fighting in enemy forces. That has been the case.
    That was the case in World War II. There were Americans 
fighting in the Werhmarcht, and we had captured some, and the 
administration took the position that they were always entitled 
to habeas corpus. They can get habeas corpus review of their 
detention, and the question is what standard applies; what is 
the showing that has to be made in habeas corpus review to 
justify continued detention of an American citizen. It didn't 
address foreigners who do not have a connection with the United 
States. The court laid out very roughly what the procedures are 
and those are essentially the procedures that are being given 
to the foreign detainees at Guantanamo.
    But I don't know why the administration dropped the case, 
although I heard Mr. Margulies talk about all this great way we 
have of handling classified information. That is nonsense. I 
had to make the decision to drop many prosecutions precisely 
because at the end of the day there was no way of protecting 
that classified information in a criminal prosecution if it was 
material to the conviction.
    Senator Leahy. So Hamdi got a free pass?
    Mr. Barr. I don't know why they dropped it.
    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. I was thinking 
about the subject matter of today's hearing and the rules by 
which enemy combatants are detained, interrogated and the like, 
and it struck me as somewhat ironic when I considered what sort 
of rules and facilities are provided by our enemy for Americans 
and our allies who are captured during hostilities.
    Of course, it occurred to me also that our enemy doesn't 
capture any Americans or allies. They kill them, they blow them 
up, which I think again demonstrates that are engaged in a 
different kind of conflict and a different kind of war. But it 
is nonetheless a war, but with an enemy that does not respect 
or observe the law of war or the conventions that we think of 
when we think about two countries fighting each other through 
uniform forces.
    As the 9/11 Commission and others have observed, we can't 
rely strictly on a law enforcement paradigm that it seems has 
infused so much of the comment here today. We have got to adopt 
a new paradigm, both to share intelligence and to deal with the 
need to get actionable intelligence from these detainees, and, 
yes, to even detain them, these dangerous individuals who are 
likely to go back and kill more Americans, if released, until 
the end of the hostilities, as peculiar as that may seem to our 
modern sensibilities.
    I certainly understand and endorse the work that Commander 
Swift and Mr. Margulies are doing as lawyers. As lawyers in an 
adversary system, their job is to present the best arguments 
that they can think of for their client, and I understand and 
respect that role that lawyers play. But I do believe, and I 
think we all would agree that the courts are ultimately the 
ones who are going to make the decision on this. In fact, the 
courts have. Indeed, in some cases the administration has 
prevailed and in some cases they have not prevailed.
    Let me just ask you, Mr. Barr, with regard to the Geneva 
Convention issue, hasn't the administration's position that al 
Qaeda fighters do not have privileges of a POW been upheld by 
Federal courts? As a matter of fact, according to my count, it 
is at least three Federal courts. It has been endorsed by the 
9/11 Commission and by the Schlesinger report.
    Is that your understanding, sir?
    Mr. Barr. Yes, Senator, that is my understanding. And as I 
said earlier, I have not heard any allegation or contention 
that could possibly bring al Qaeda under the protections of the 
Geneva Convention.
    Senator Cornyn. Now, with regard to the Supreme Court's 
recent decisions which we are talking about here during this 
hearing, Mr. Barr, didn't the Court agree with the 
administration's position that the President has the power to 
detain enemy combatants and reject legal challenges to that 
    Mr. Barr. Yes. I think one of the things that has been 
missed by the media in reporting those decisions is all the 
core positions of the administration that were sustained. The 
Court specifically said, yes, you can detain enemy combatants. 
It is not punitive, it is not a trial-type situation where you 
are trying to punish them.
    Number two, it said you can even detain American citizens 
as enemy combatants. It was in that context that they 
elaborated on the standard you need for keeping an American 
citizen in the United States. They also seemingly endorsed use 
of military tribunals, and they pointed out that military 
tribunals are inherently flexible and they talked about the 
need for flexibility in dealing with these kinds of procedures 
in the national security arena and how the flexibility of 
military tribunals permits that.
    In fact, notwithstanding the professor's comments that we 
sort of have things on the shelf we can use, that is simply not 
true. These kinds of situations always involve unique 
circumstances, which is why we have generally constituted 
military commissions directed at specific conflicts. And I 
think that the President's order did exactly what we needed for 
this particular conflict.
    Senator Cornyn. Thank you very much.
    Well, in the end I hope we at least all can agree that 
notwithstanding the arguments people may make in court, or 
people of good faith who are trying to advance the cause of 
actually getting a decision on this, that we will ultimately at 
least agree that the courts are going to be the ones who are 
ultimately going to decide the parameters of the rights 
accorded to these detainees, as they have already largely 
through the Supreme Court's decisions in Hamdi and Padilla and 
    Thank you very much, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman. Mr. 
Chairman, I just want the Committee to know that today Attorney 
General Gonzales, I gather in Brussels, has said, and I quote--
and this is about Guantanamo--``We have been thinking about and 
continue to think about whether or not this is the right 
approach. Is this the right place, is this the right manner in 
which to deal with unlawful combatants,'' he told reporters in 
Brussels, and I must commend him for that open view.
    Mr. Chairman, I would also like to put in the record 
something we downloaded from the White House fact sheet 
yesterday, and that is a statement on detainees and it says the 
United States is treating and will continue to treat all of the 
individuals detained at Guantanamo humanely, and to the extent 
appropriate and consistent with military necessity in a manner 
consistent with the principles of the Third Geneva Convention, 
    Then the fact sheet goes on to discern Taliban are entitled 
to POW status, but al Qaeda detainees are not. And I think in a 
way, that is the rub. I think, in a way, it is the 
determination of who is who, guilty of what, that is a real 
problem here. And I have just about reached the conclusion that 
this special military commission is not a positive thing, but 
the Uniform Code of Military Justice really is.
    Could I ask this question of anybody that knows: How many 
cases have come before the military commission?
    Commander Swift. To date, there are four. Two cases 
actually had commissions convened in them. The other two cases 
did not get that far. So there are four people identified at 
present. Two of the individuals who were to be tried by 
military commissions requested to represent themselves--or 
excuse me--one did, and in the other one there was a question 
regarding counsel so they never started. So there are a total 
of four.
    Senator Feinstein. Thank you. Commander Swift, if I might, 
you mentioned that you had been told you could only represent 
Mr. Hamdan as long as it was to negotiate a guilty plea. Did 
you receive any document to that effect?
    Commander Swift. Yes, ma'am, I did.
    Senator Feinstein. And could you tell us about that 
document, please?
    Commander Swift. Ma'am, it was a target letter to the 
acting chief defense counsel, who at that time was Colonel Will 
Gunn--he is now the chief defense counsel--on December 15, 
2003. It requested Colonel Gunn, who was the detailing 
authority, to make counsel available for Mr. Hamdan. It was 
from the chief prosecutor, Colonel Fred Bork, who was at that 
time the acting chief prosecutor for the military commissions. 
He said that they were considering preparing charges and that 
they desired to have a defense counsel detailed. He then put 
some limitations on that.
    Senator Feinstein. And what were those limitations?
    Commander Swift. Specifically, ma'am, he said that he was 
authorized to detail a military defense counsel to advise Mr. 
Hamdan on how he might engage in pre-trial discussions with a 
view toward resolving the allegations against him; that the 
prosecutor's office would make arrangements with Commander, 
Joint Task Force Guantanamo, for such detailed military counsel 
to have access to Mr. Hamdan.
    Senator Feinstein. Now, how do you interpret that?
    Commander Swift. Well, I interpreted it most on this last 
line, ma'am: ``Such access shall continue so long as we are 
engaged in pre-trial negotiations.'' I interpreted that, ma'am, 
to mean when I was detailed that the only way I could see Mr. 
Hamdan was we were negotiating for a guilty plea. There are no 
negotiations in a not guilty plea.
    Senator Feinstein. Mr. Chairman, may I enter that memo into 
the record, please?
    Chairman Specter. Without objection, it will be made part 
of the record.
    Senator Feinstein. Thank you.
    I would like to ask Professor Schulhofer a question. In 
your written testimony, you refer to Congress's law-making 
power under Article I, section 8, of the Constitution. It has 
been my view that Congress has both the power and the 
responsibility to take on the issue of detentions and 
interrogations, specifically pursuant to two clauses of section 
8, to make rules concerning captures on land and water, and to 
make rules for the government and regulation of the land and 
naval forces.
    Do you agree, and are these the particular sources you are 
referring to?
    Mr. Schulhofer. Thank you, Senator. Yes, I believe that 
those two clauses are as explicit and clear as anything could 
be, and they are not in footnotes. They say that Congress shall 
have the power to make rules concerning captures and to make 
rules concerning the regulation of the armed forces. In the 
absence of congressional action, unquestionably the President 
must take action as commander in chief, but there is absolutely 
no room for doubt that this is an appropriate responsibility 
for Congress.
    Senator Feinstein. I think, Mr. Chairman, at best what we 
have is a very confused situation, depending on interpretation, 
how commanders interpret how orders are given. And I think we 
have seen this over and over again. What is clear to me is that 
we have the legal responsibility to make the rules and I think 
we ought to do that. And I think we ought to see that they are 
consistent with the Geneva Conventions.
    I would like to ask you this question. How would you 
recommend that the question of habeas corpus be handled?
    Mr. Schulhofer. Thank you, Senator. I have tried to spell 
out some of the details in my written testimony. I think one 
place to start, just to be very clear about this, is we are not 
talking about a law enforcement paradigm. I think it is quite 
misleading to think that those like myself who have concerns 
about this process are simply saying you should follow a law 
enforcement paradigm.
    What we are saying is that we should follow the normal 
military procedure for people who are captured in battle. The 
normal procedure would have been a prompt battlefield 
determination of status. Three years later, it is very 
difficult to do that when the President and the Secretary of 
Defense and right down the chain of command have already 
announced that these people are the worst of the worst.
    So in that context, there needs to be some other process.
    With respect to people accused of committing war crimes, 
there is, as well, a process already in place in terms of 
military courts martial. We are not talking about ordinary law 
enforcement. We are talking about military courts martial under 
the Uniform Code of Military Justice. So that would be the 
beginning framework. I think there is room for Congress to make 
refinements of the Classified Information Procedures Act. If 
Congress is not able to act, the courts have residual authority 
to address new situations, but that would be the basic 
    And then I think the last thing I would want to say about 
that is I have said that this is a question of the war 
paradigm, but there is one important limit to that. If we 
accept the idea that the entire world is a battlefield--and I 
understand that. My office is less than a mile from Ground 
Zero. I understand that extremely well. And September 11th for 
us was not a day; it was months that we had the smoke and the 
National Guard. It was months that we could smell human flesh 
burning at Ground Zero. So I know what that means.
    But if we accept the analogy, the conclusion is that the 
President then has unlimited discretion to swallow up the law 
enforcement paradigm even--
    Chairman Specter. Professor Schulhofer, could you summarize 
this answer? We are trying to at least conclude by 1:30.
    Mr. Schulhofer. Yes. I apologize, Senator. I think I have 
actually reached the conclusion of my answer and I will be 
happy to elaborate further after the hearing.
    Chairman Specter. That sounds like a good idea.
    Anything further, Senator Feinstein?
    Senator Feinstein. Thank you.
    Chairman Specter. Senator Sessions.
    Senator Sessions. Mr. Chairman, this has been a good and 
interesting discussion. I wish I had been able to hear all of 
it since the second panel had come.
    I think, in general, the tone of this hearing has suggested 
widespread abuses on the part of our military, whereas what 
really is at stake here is a legal debate over exactly what 
procedures ought to be utilized. If someone has violated the 
procedures, they ought to be disciplined.
    Commander Swift, with regard to your appointment, isn't it 
true that you were appointed as counsel for Hamdan for all 
matters relating to military commission proceedings involving 
    Commander Swift. I was so appointed.
    Senator Sessions. Not just solely to take a guilty plea.
    Commander Swift. Sir, when I was appointed, my access to 
Mr. Hamdan was not controlled by the Office of the Chief 
Defense Counsel. It was controlled by the prosecutor, and the 
prosecutor told me at the time of my appointment that my access 
was controlled contingent upon him pleading guilty. In fact, he 
told me further that I had to give him an answer in 30 days and 
if I didn't give him an answer in 30 days, I had to request 
extensions. He was in control of whether I saw my client or 
    I believed as a lawyer that once I had an attorney-client 
relationship, then I had a duty to represent him, no matter 
what. But the truth of the matter was I had to advise Mr. 
Hamdan of the real practicalities, and that was that if he 
wasn't going to plead guilty, he might not see my again.
    Senator Sessions. Well, Lieutenant Commander Swift, you are 
a lieutenant commander, a JAG officer. Prosecutors don't order 
around JAG defense counsel. I know that and you know that from 
the little time I had as a JAG officer, and I would note that 
the order directing you to represent him says ``all matters 
relating to military commission proceedings,'' close quote.
    Mr. Barr. Excuse me, Senator. Could I something there?
    Senator Sessions. Yes, Mr. Barr.
    Mr. Barr. Let's put something in perspective here. The 
United States has a lot of people that they could charge with 
war crimes. We are not under any obligation to try these people 
when they want to be tried. We can try them when we want to try 
them. Rudolph Hess was captured in 1939 and he was tried in 
1946. These people are in detention as combatants. So we can 
take our time and judge who we want to do.
    And it doesn't surprise me that as an initial matter, in 
terms of allocating our resources, the United States wanted to 
see if anyone was ready to plead guilty. And if they are ready 
to plead guilty, we will provide them with counsel. If they are 
not ready to plead guilty, they can stand in line and wait to 
be prosecuted down the road. That is not a surprising thing.
    Senator Sessions. I would also note, Mr. Barr, that the--
    Senator Leahy. Can we have the Lieutenant Commander's 
    Senator Sessions. I thought he answered.
    Commander Swift. Sir, I would like to respond. As you said, 
this was extraordinary circumstances, though. I can't see my 
client without the permission of JTF. I have to write a message 
every single time and be approved.
    Senator Sessions. Well, you are unhappy that you have to 
write a message to see the client. That is one thing. It is 
another thing to say that you weren't commissioned to represent 
him on anything but a guilty plea.
    Commander Swift. My access was contingent upon it, sir. 
Also, he differed from the situation that Mr. Barr described in 
that he was in solitary confinement. Had he been among the 
general detainee population, I would be more willing to agree.
    Mr. Barr. Another point on that. Anyone who has gone into a 
Federal maximum-security prison--you know, these violin strings 
about people being held in segregation, getting out of their 
cell 20 minutes a day--I am sorry; that is our system in our 
maximum-security prisons in the United States for American 
    Senator Sessions. I couldn't agree more, Attorney General 
    I would just like to point out that we have regular visits 
by the Red Cross. Two hundred of these detainees now have 
habeas corpus petitions pending in Federal courts. A thorough 
investigation of all procedures has been undertaken as part of 
ten major reviews, assessments, inspections and investigations, 
and we have had hearings on that repeatedly. Seventeen hundred 
interviews have been conducted. Sixteen thousand pages of 
documents have been delivered to Congress.
    Detention operation enhancements and improvements have 
involved increased oversight and expanded training of the 
guards and interrogators to improve facilities. 390-plus 
criminal investigations have been completed or are ongoing. 
More than 29 congressional hearings have addressed this issue--
29 congressional hearings. Those responsible are being held 
    In the Army, one general officer has been relieved from 
command. Thirty-five soldiers have been referred to trial by 
court martial, 68 soldiers have received non-judicial 
punishment, 22 memoranda of reprimand have been issued, 18 
soldiers have been administratively separated. The Navy has had 
nine receive non-judicial punishment. The Marines: 15 convicted 
by court martial. Seven received non-judicial punishment, and 
four reprimanded.
    So I think it is important for the people who are listening 
to this hearing today to know that our United States military 
takes this issue seriously. They brought up the Abu Ghraib 
matter before the press did. They announced it. They commenced 
their own investigation. People have been prosecuted and 
convicted, and we are not going to tolerate the kind of 
behavior that we have seen in certain of these instances.
    But the fact is these are not American criminals, Mr. Barr. 
I think you have indicated that, and they are not entitled to 
the same due process rights an American does who expects to be 
tried in Federal district court somewhere.
    Could I ask Mr. Barr one more thing?
    Chairman Specter. Go ahead, Senator Sessions.
    Senator Sessions. As Attorney General of the United States, 
you understand that an Executive has certain powers. The courts 
have certain powers and the legislative branch has certain 
    Speaking as an attorney general who would be representing a 
President of the United States, do you have concerns about what 
could be an erosion of the Executive's power to conduct a war 
on behalf of the citizens of the United States?
    Mr. Barr. Absolutely, Senator, and what we are seeing, I 
think, today is really a perversion of the Constitution. The 
Constitution sets up a body politic, members of a political 
community, and in that body politic we have rules that govern 
us. And what the Constitution is all about is to say that when 
the Government acts against a member of the body politic to 
enforce our own domestic laws--that is, the Government acting 
against one of the people--the judicial branch backs off and 
acts as a neutral arbiter and various standards are imposed on 
the executive. And those standards sacrifice efficiency in 
order to be perfect. We don't want to make a mistake. We would 
rather let guilty people go and pay that price because we want 
to get it absolutely right.
    That is not what is going on here. What is going on here is 
our body politic, the people, are under attack from foreigners, 
a different people. They are trying to impose their will on us 
and kill us. In that situation, the very notion of the 
judiciary backing off and playing some role as a neutral 
arbiter between the people of the United States and a foreign 
adversary is ludicrous and perverse.
    The idea that we can fight a war with the same degree of 
perfection we try to impose on our law enforcement system, 
which is to say we will not tolerate any collateral damage in 
law enforcement and we have to be absolutely mistake-free--to 
try to use those rules and impose them on a war-fighting 
machine, to say it has to be absolutely perfect and we can't 
hold anyone in detention and they have all kinds of due 
process--the idea that a foreign person that our troops believe 
is a combatant is going to be held, you know, and we are going 
to turn the earth upside down and turn our army into detectives 
to figure out whether it is true or not is ridiculous. We will 
lose wars. We will lose our freedom.
    Chairman Specter. Commander Swift, do you have a final 
comment? I note you straining to be recognized, so you are.
    Commander Swift. Well, thank you, sir. Just a couple of 
points in response to what I have heard here today. I would 
point that where Mr. Hamdan is held is equivalent to the 
maximum-security prisons of the United States. The difference 
is it is called administrative by criminal sanction.
    I agree that we need every tool available as a military 
officer to fight and win wars, and that they are not the same 
thing. I would point out, though, that when we go to hold 
accountability, when you hold a trial, sir, it says as much 
about the man who is being accused--it says as much about the 
society that holds the trial as it does about the individual 
before it. Our trials in the United States reflect who we are. 
They are the models of the world.
    We heard statistics from Senator Sessions, and I couldn't 
agree more. What they demonstrated was that the Uniform Code of 
Military Justice works. It was able to try people who had been 
inside those prisons. All of those trials are done. It worked 
great. Why don't we use it and start holding the people who 
attacked us accountable?
    Thank you for your time, sirs.
    Chairman Specter. Thank you very much. Senator Leahy has 
one more comment and then we are going to conclude.
    Senator Leahy. Mr. Chairman, I would note, with all due 
respect, about the administration coming forth on Abu Ghraib 
and Afghanistan, a lot of people had asked questions about what 
was going on there long before anything was said by the 
administration, and it was said only after it became public.
    Senator Sessions. No.
    Senator Leahy. We, will go back--
    Senator Sessions. The General in his press briefing 
announced that they were conducting an investigation of abuses 
at Abu Ghraib before anybody raised it.
    Chairman Specter. We will continue this debate at 
tomorrow's executive session. It starts at 9:30.
    Chairman Specter. Do you have a final statement, Senator 
    Senator Leahy. Well, Attorney General Barr, whom I have a 
great deal of respect for, made a strong statement about how 
people were held in maximum-security, allowed only a few 
minutes out and everything else. I would just remind him of 
something that he is well aware of. Those are people who have 
been convicted and then sentenced. They weren't just being held 
under charges.
    Thank you, Mr. Chairman.
    Chairman Specter. Well, thank you, Senator Leahy, and I 
thank the panel and the first panel. We have a great deal of 
work to do beyond what we have done here today, and we are 
going to be following up on some of the specifics for ideas as 
to how to implement the kinds of approaches which have been 
articulated here today.
    I want to thank the staff, Evan Kelly especially, for 
wading through an extraordinarily difficult series of judicial 
opinions. It is worthwhile to go back to some of the basics. 
This has been as lively a Judiciary Committee hearing as we 
have had in a long time, absent a Supreme Court nomination, and 
we have a lot more work to do to follow up.
    So thank you all.
    [Whereupon, at 1:34 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
    [Additional material is being retained in the Committee