S. Hrg. 109-600 DETAINEES ======================================================================= HEARING 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 U.S. GOVERNMENT PRINTING OFFICE 24-332 WASHINGTON : 2006 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 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 ---------- STATEMENTS OF COMMITTEE MEMBERS Page 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 WITNESSES 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 DETAINEES ---------- 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. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 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, colleagues. 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 defined. 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? STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 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 proceed. 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 rates. 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 rejected. 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 subject. 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. STATEMENT OF REAR ADMIRAL JAMES M. MCGARRAH, DIRECTOR OF ADMINISTRATIVE REVIEW OF THE DETENTION OF ENEMY COMBATANTS, DEPARTMENT OF THE NAVY, WASHINGTON, D.C. 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 proceedings; The opportunity to call witnesses on his behalf, if those witnesses are relevant and reasonably available; The opportunity to question witnesses called by the tribunal; 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 hearing. 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 opportunities. Chairman Specter. Admiral McGarrah, could you summarize, please? 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 witnesses. 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. STATEMENT OF BRIGADIER GENERAL THOMAS L. HEMINGWAY, LEGAL ADVISOR TO THE APPOINTING AUTHORITY FOR THE OFFICE OF MILITARY COMMISSIONS, DEPARTMENT OF DEFENSE, WASHINGTON, D.C. 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. STATEMENT OF J. MICHAEL WIGGINS, DEPUTY ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 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 application. 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. STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF 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 schedules. 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 unacceptable. 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 review. I thank the Committee for inviting me to testify about these OIG reviews, and I would be pleased to answer any questions. [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 not.'' 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 humanely. 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 way. 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 responsibility. 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. 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 DOD? 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 agency. 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 Afghanistan? 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 anything-- 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 saying? 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 operations. 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 home. Has anybody at Justice defined when there is the end of conflict? 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 perpetuity? 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 concept. 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 TDY. Senator Graham. Good answer. [Laughter.] 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 said. 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 technique. 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 only 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 proceeding. ``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. Hamdan.'' 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 part. 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.'' [Laughter.] 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 process? 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 cases. 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 you. 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 position. 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 viewpoint. 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 footnote. 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 detention-- 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 correct. 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 law. Senator Coburn. I don't have any other questions, Mr. Chairman. 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. [Laughter.] 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 record. 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. 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 successful. 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 Sessions. 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 symbolizes. 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 continue. 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, sir. 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, sir. 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 Defense? 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 much. 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 helpful. 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. STATEMENT OF JOSEPH MARGULIES, MARGULIES AND RICHMAN, 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 January. 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. STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF THE UNITED STATES, AND EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, VERIZON CORPORATION, WASHINGTON, D.C. 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. STATEMENT OF LIEUTENANT COMMANDER CHARLES D. SWIFT, DEFENSE COUNSEL, OFFICE OF CHIEF JUSTICE COUNSEL, DEPARTMENT OF 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 Navy. 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 circumstances. 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. STATEMENT OF STEPHEN J. SCHULHOFER, PROFESSOR, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK Mr. Schulhofer. Thank you, Senator Specter, members of the Committee. 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 Schulhofer. 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 job? 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 expertise? 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 commissions. 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 correct. 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 accused. 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 position? 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 others. 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, 1949. 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 approach. 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 him? 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 not. 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 answer? 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 citizens. Senator Sessions. I couldn't agree more, Attorney General Barr. 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 accountable. 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 powers. 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. [Laughter.] Chairman Specter. Do you have a final statement, Senator Leahy? 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. 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