S. Hrg. 110-531
HOW THE ADMINISTRATION'S FAILED DETAINEE POLICIES HAVE HURT THE FIGHT
AGAINST TERRORISM: PUTTING THE FIGHT AGAINST TERRORISM ON SOUND LEGAL
FOUNDATIONS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 16, 2008
__________
Serial No. J-110-107
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
44-818 PDF WASHINGTON DC: 2008
---------------------------------------------------------------------
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�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 29
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 4
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 5
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 82
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Gunn, Will A., Colonel, United States Air Force (retired), and
former Chief Defense Counsel, Department of Defense, Office of
Military Commissions, Fort Belvoir, Virginia................... 7
Martin, Kate, Director, Center for National Security Studies,
Washington, D.C................................................ 9
Rivkin, David B., Jr., Partner, Baker Hostetler, LLP, Washington,
D.C............................................................ 10
SUBMISSIONS FOR THE RECORD
Denbeaux, Mark P., Professor of Law, Seton Hall University School
of Law, Newark, New Jersey, statement and attachment........... 34
Gunn, Will A., Colonel, United States Air Force (retired), and
Former Chief Defense Counsel, Department of Defense, Office of
Military Commissions, Fort Belvoir, Virginia, statement........ 66
Kassem, Ramzi, Clinical Lecturer in Law and Robert M. Cover
Clinical Teaching Fellow, Yale Law School, New Haven,
Connecticut, statement......................................... 76
Martin, Kate, Director, Center for National Security Studies,
Washington, D.C., statement.................................... 84
Rivkin, David B., Jr., Partner, Baker Hostetler, LLP, Washington,
D.C., statement................................................ 96
HOW THE ADMINISTRATION'S FAILED DETAINEE POLICIES HAVE HURT THE FIGHT
AGAINST TERRORISM: PUTTING THE FIGHT AGAINST TERRORISM ON SOUND LEGAL
FOUNDATIONS
----------
WEDNESDAY, JULY 16, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feingold, Cardin, Whitehouse,
Specter, and Kyl.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Thank you all. I was just explaining to
Senator Specter that the traffic gets worse all the time. I was
at a couple of breakfast meetings downtown, so I do apologize,
and to Senator Kyl, too, of course.
In the wake of the tragic attacks on September 11th and
toward the end of President Bush's first year in office, this
country had an opportunity to show that we could fight
terrorism, secure our Nation, and bring the perpetrators of
those heinous acts to justice, and do it in a way that was
consistent with our history and our most deeply valued
principles. You will recall we had virtually the whole world on
our side at that time. A number of us reached out to the White
House, both Republicans and Democrats alike, in an effort to
craft a thoughtful, effective bipartisan way forward. The White
House chose another path. They diverted our forces away from al
Qaeda and capturing Osama bin Laden instead to go to war and
occupation in Iraq--a country that had nothing to do with 9/11,
and, of course, allowing Osama bin Laden to stay loose. And
they chose to enhance the power of the President and to turn
the Office of Legal Counsel at the Department of Justice into
an apologist for White House orders--from the warrantless
wiretapping of Americans to torture. Many of us feel, as I do,
that that made our country less safe, not safer.
We are all too familiar now with the litany of disastrous
actions by this administration: rejecting the Geneva
Conventions, which the President's counsel, incidentally,
referred to Geneva Conventions as ``quaint''; and doing this
against the advice of the Secretary of State; establishing a
system of detention at Guantanamo Bay in an effort to
circumvent the law and accountability; attempting to eliminate
the Great Writ, the writ of habeas corpus, for anyone
designated by the President as an enemy combatant. They set up
a flawed military commission process that, after 6 years, has
not brought even a single one of these dangerous terrorists to
trial; and permitting cruel interrogation practices that in the
worst cases amount to officially sanctioned torture.
In her new book ``The Dark Side,'' journalist Jane Mayer
has offered a major contribution to reporting these matters. In
addition to providing previously unknown details of U.S.
treatment of detainees, Ms. Mayer writes of a 2007 report from
the International Committee of the Red Cross, the ICRC--
incidentally a committee that the United States has relied on
over the years to demonstrate whether things are done right or
wrong. That concluded that interrogation techniques used by the
United States constituted torture. The ICRC, like retired Major
General Taguba, who investigated detainee abuses for the Army,
suggested that the conduct of these officials could amount to
war crimes.
Another deeply troubling revelation in Ms. Mayer's book is
that one-third to one-half of the detainees at Guantanamo have
been known, almost since the beginning, to have no connection
to terrorism at all. But the White House refused to allow any
new review of their status because, according to the Vice
President's chief of staff, David Addington, ``The president
has determined that they are ALL enemy combatants.'' And, of
course, that was the end of the inquiry, even if it was
erroneous.
Throughout all of this, the administration has been
assisted by lawyers willing to give whatever answer the White
House wanted and by a compliant Congress. The only real check
on the administration, in fact, has been a 5-4 majority of the
conservative U.S. Supreme Court. The Supreme Court has rightly
rejected, time after time, backdoor efforts by the Bush
administration and its congressional enablers' to re-write our
Constitution in the name of the ``war on terror.''
From 2004 to 2008, the Supreme Court has rejected the
administration's attempts to deprive citizens and non- citizens
of their right to challenge their indefinite detention in
Federal court. The Court has sought through the power of
judicial review to provide a check and balance. Last month, in
the Boumediene case, the Court reinforced our Constitution and
our core American values in holding that the habeas-stripping
provision in the Military Commissions Act is unconstitutional.
That case brings the administration's record to 0 for 4. Four
times the Supreme Court has repudiated the disastrous detainee
policy.
You know, the policy is not only illegal and immoral. It
has been harmful in the fight against terrorism. If it actually
helped in the fight against terrorism, it would be one thing.
It has not. It has harmed it. We cannot defeat terrorism by
abandoning our basic American principles and values. Look what
the pictures from Abu Ghraib and tales of unjustified
detentions and torture have done. They have provided the real
enemies of this country with a recruiting field day.
And I am not alone in saying that these policies have made
us less safe. Former Secretary of State Colin Powell said last
summer that ``Guantanamo has become a major, major problem
for...the way the world perceives America. And if it was up to
me, I would close Guantanamo not tomorrow, but this
afternoon.'' Then Secretary Powell added that Guantanamo had
``shaken the belief the world had in America's justice
system.'' When asked whether it is a problem for detainees to
have habeas corpus rights he said ``[s]o what? Let them. Isn't
that what our system's all about? '' General Powell is correct.
Even former Secretary of Defense Donald Rumsfeld questioned
in a memo whether our tactics and policies are creating more
terrorists than we are killing or capturing. And I think that
is going to continue until we return to policies that reflect
our values and uphold the rule of law which made our country
great for 200 years.
Adopting a detainee policy that reflects our values would
mean closing Guantanamo, giving detainees due process, and
releasing those who never should have been there in a timely
and responsible manner. Detainees that pose a danger to this
country and the world should swiftly be brought to justice
within either our military or civilian justice systems. These
systems are strong, they are flexible; more importantly, they
are up to the job.
Cleaning up this mess is not going to be easy. I think we
have to join together in the months ahead to rethink the
misconceived legal framework that has been devised and carried
out by the administration. And I think we can do that. But
let's find out what went wrong during the past 7 years, and
let's figure out ways to put our legal system back on track.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman, and thank you for
convening this important oversight hearing. Regrettably, the
oversight function of the Congress is not carried out the way
it ought to be, and that is because there are so many things to
have oversight on. And, candidly, it is such a difficult
process, even when we find problems in moving ahead for any
answers.
The issues arising out of Guantanamo I fear are going to be
with the United States for a long time. I made two trips to
Guantanamo early on--the first in August of 2005--and I could
see that there was a need for a determination as to whether
there were people being detained there who should not have been
detained. When we heard about the practices of taking people
into custody, we were told that they would be rounded up on the
battlefield with very little identification or specification as
to who had done what. And that sort of a situation just cries
out for some factual determination as to what is going on.
We now have a lot of material coming out. There have been a
lot of books written. Some of the books say that as many as
one-third of those held in Guantanamo should not have been
there at all. Well, somebody has to find that out, and that is
an important oversight function for this Committee.
I saw a long time ago, as an assistant district attorney,
the questionableness of a police report or of a citizen who
initiates a criminal prosecution on a complaint once you have a
hearing. Pennsylvania law requires a preliminary hearing before
you are indicted. You do not have to do that in the Federal
system. You can go to a grand jury without a hearing. Nothing
like a hearing, because at a hearing, you hear. And there has
to be a reason for detention, and that is why we struggled so
hard to get the writ of habeas corpus applicable, and finally
it is there. A long, tough battle. And that is what has to be
done.
There is no doubt from many, many sources, including polls,
which I usually don't pay a lot of attention to, but when they
come in from all around the world about our popularity rating
and our evaluation of our values being so low, you have to. And
the United States has always been the leader. We have got to
persuade a lot of people to do a lot of things that they do not
want to do, like joining in the fight against terrorism, like
helping out in Iraq, like helping out in Afghanistan. And if we
do not have some moral ground to stand on, it is not possible
to do that.
So I think it is important that I am not about to make any
prejudgments. I want to have the hearing. I want to see what
people have to say. I want to know what the facts are. Once we
find out what the facts are, usually people of good will can
come together on what ought to be done.
So I thank you, Mr. Chairman, for convening the hearing. As
I said to you earlier, I am ranking on Health and Human
Services. We are having a hearing on the National Institutes of
Health, and that is one subject that is equally important to
this one. So I am going to excuse myself.
Chairman Leahy. Thank you. That goes for all of us, and I
appreciate that. I should note that Senator Kyl is the Ranking
Member on the Terrorism Subcommittee. He is also the Assistant
Republican Leader, and Senator Feingold is the Chairman of the
Constitution Subcommittee. I would yield first to Senator
Feingold and then Senator Kyl for brief opening statements.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman, and I, too, want
to thank you for holding this important hearing.
Since 9/11, America has faced a great challenge: responding
aggressively to those infamous acts of terrorism and to the
very real threat posed by al Qaeda without abandoning our
freedoms and democratic values. Unfortunately, this
administration has not successfully met that challenge, and its
detention and interrogation policies are a major reason for
that failure.
The administration has claimed the right to pick up anyone
anywhere in the world, and by simply labeling him an ``enemy
combatant,'' lock him up for the rest of his life. Not only
that, it has claimed the right to use abusive interrogation
techniques on the people it detains--techniques that the U.S.
Government has condemned other countries for employing.
Such violations of the rule of law can only diminish our
credibility abroad and encourage the recruitment efforts of our
enemies. In other words, these policies not only undermine the
principles on which this country was founded, they are harmful
to our national security today. But at last there may be some
light at the end of the tunnel. Our legal system has long
relied on review by an independent and neutral decisionmaker as
a critical safeguard against wrongful detention. In particular,
the writ of habeas corpus provides one of the most significant
protections of human freedom against arbitrary government
action that has ever been created.
The Supreme Court last month reiterated exactly that in its
decision in Boumediene v. Bush. The Court struck down the
provisions in the Military Commissions Act that tried to strip
detainees of the longstanding right to challenge their
detention via habeas corpus and reaffirmed that the Government
does not have the power to detain people indefinitely and
arbitrarily without adequate judicial review. ``The laws and
the Constitution are designed to survive and remain in force in
extraordinary times,'' as Justice Kennedy said. ``Liberty and
security can be reconciled, and in our system they are
reconciled within the framework of the law.''
I could not agree more. There were undoubtedly difficult
legal issues raised in the case, but the decision is
fundamentally sound.
I am dismayed by those who attack this decision. Americans
should all be grateful that the Supreme Court has again
rejected the extreme arguments put forth by this
administration. The decision represents the best of our
Nation's legal system, and we should celebrate the Court's
courage and independence in making it. I am pleased that the
Committee is considering today how to best move past the
destructive and counterproductive detention and interrogation
policies of this administration. We can and must combat al
Qaeda aggressively while maintaining our principles and our
values.
And, Mr. Chairman, I too am sorry that I cannot stay for
the rest of the hearing, but I appreciate the opportunity to
make these remarks. Thank you.
Chairman Leahy. Thank you very much.
Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Mr. Chairman, thank you. I will just make a
brief remark.
First of all, I would like to ask unanimous consent that
Senator Cornyn has a statement to be included in the record.
Chairman Leahy. Of course, without objection.
Senator Kyl. Thank you. Also, you know, I have chaired a
lot of Committee hearings over the last 12 years, oversight
hearings as Chairman of the Terrorism Subcommittee, and we
usually tried to find out what the facts were from the
witnesses, and then we would write a report. But I note that
you have already decided what the answer is with the title of
this: ``How the Administration's Failed Detainee Policies Have
Hurt the Fight Against Terrorism.'' Not a very objective way, I
suggest, to characterize this hearing. It is kind of a ``hang
them and then we will try them'' approach.
I know that everything about this is partisan, and that is
really regrettable because the people who had to deal with this
issue when it first arose in the aftermath of 9/11 had a very
tough job. And there has been a lot of sniping from the
sidelines, a lot of criticism, very little of it constructive.
And too much of it has been put into purely partisan terms.
These are serious matters that we are seriously trying to
deal with in order to defeat a serious enemy. And some of the
suggestions or characterizations are most unfortunate. For
example, Mr. Chairman, when you talk about the congressional
enablers, I did not get each of the votes that we cast on those
like the Detainee Treatment Act, but I remember one of them was
84-14. That suggests that there are a lot of Democrats and
Republicans who are enablers.
I think that is an unfair and unfortunate characterization.
Clearly, we are talking about failed detainee policies in the
context of decisions that the Supreme Court has rendered. We
are talking about acts of Congress that have been declared
partially invalid or unconstitutional. I find that regrettable
when the Congress by overwhelming, bipartisan majorities passes
legislation to deal with this unique and new problem that we
resort to the kind of language that you have to be so critical
in such a partisan way.
I hope that our witnesses today--they are all distinguished
observers here--can shed light on this in a way that suggests
that these are not all easy answers, that the United States has
a right to defend itself, and that no nation in the world can
claim a higher moral ground in dealing with these issues than
can the United States. It is uncontestable--I will give the
witnesses a chance to respond if they would like--that the
rights, even before the Supreme Court decisions, that we
provided to detainees were far greater than any country on
Earth has ever provided to enemy combatants.
So I suggest that we try to focus constructively on what we
have tried to do as best we can, following our moral precepts
and legal precepts, and not focus on the partisan aspects of
this where we each hold our views strongly. But that does not
get us very far in figuring out where to go in the future.
Chairman Leahy. Thank you. I still agree in a bipartisan
fashion with what General Powell and Secretary Rumsfeld said--
and I quoted them--about the mistakes that have been made.
Colonel Will Gunn, Retired, United States Air Force, has a
distinguished record of public service. His last military
assignment was Chief Defense Counsel in the Department of
Defense Office of Military Commissions. He oversaw legal
defense of detainees brought before the military commissions at
Guantanamo Bay, Cuba. Colonel Gunn held a variety of other
positions in the military ranging from trial attorney to the
Air Force General Litigation Division's Military Personnel
Branch, to Executive Officer to the Air Force Judge Advocate
General. In civilian life, Colonel Gunn served as Chief
Executive Officer of the Boys and Girls Club of Greater
Washington. He knows what support I and several members of both
sides of the aisle have been to the Boys and Girls Club. He is
now a private attorney in Northern Virginia, holds a Master of
Laws degree in Environmental Law from George Washington
University, Master of Science degree from the Industrial
College of the Armed Forces.
Colonel Gunn, please go ahead, sir.
STATEMENT OF WILL A. GUNN, COLONEL, UNITED STATES AIR FORCE
(RETIRED), AND FORMER CHIEF DEFENSE COUNSEL, DEPARTMENT OF
DEFENSE, OFFICE OF MILITARY COMMISSIONS, FORT BELVOIR, VIRGINIA
Colonel Gunn. Thank you very much, Senator Leahy and other
members.
In 2003, former DOD General Counsel Jim Haynes named me as
the first Chief Defense Counsel in the Office of Military
Commissions. At that time I was given office space on the first
floor of the Pentagon in the section next to the portion that
has been seriously damaged on 9/11. Each day I had an
opportunity to pass by a plaque, and that plaque included the
words spoken by President George W. Bush on the night of
September 11, 2001. And that plaque read: ``Terrorists can
shake the foundations of our biggest buildings, but they cannot
touch the foundation of America.''
Unfortunately, many of our detention policies and actions
in creating the Guantanamo military commissions have seriously
eroded the fundamental American principles of the rule of law
in the eyes of Americans and in the eyes of the rest of the
world.
As Chief Defense Counsel, I was responsible for screening
prospective defense personnel, doing my utmost to promote a
zealous defense for any detainees brought before a military
commission, promoting ``full and fair trials,'' and overseeing
the entire defense function for the military commissions.
I am going to focus my attention on those military
commissions. As has already been stated, one of the things that
happened in the early days was that the administration
President made a determination that all of the individuals that
were captured in Afghanistan as well as throughout the global
war on terrorism were unlawful enemy combatants. Therefore,
they were not entitled to the protections of the Geneva
Conventions. And another decision was made that Article 5
tribunals, as called for under the Geneva Conventions, would
not be conducted. This was a major break with policy. During
Operation Desert Storm, for instance, more than 1,100 such
tribunals had been held in order to determine exactly how each
and every prisoner should be treated.
With the military commissions system that I inherited and
was asked to take part in, there have been several problems,
and I would just like to bring a few to this Committee's
attention.
First of all, the rules were created from scratch or, more
accurately, if you looked at the rules that were created, they
bore a great resemblance to the rules that President Roosevelt
put into effect in 1941 to try German saboteurs that had landed
on our shores. They bore very little resemblance to modern-day
courts martial.
For instance, the system did not have a military judge, it
did not allow for any type of independent judicial review, and
there were other problems as well. Since then, the Military
Commissions Act has been passed, and some of these problems
have been corrected, but other remain.
One of the things that the system called for, one of the
things that the system exemplified, was the lack of an
independent chain of command for the Defense Counsel. As Chief
Defense Counsel, I was supervised by a senior career attorney
in the Office of the DOD General Counsel rather than having an
independent chain, as was advocated by the various Judge
Advocates General for the different services. That system
remains in place today.
The rules allow for a civilian counsel and the accused to
be excluded from the courtroom when classified information was
being considered, leaving only military counsel in the
courtroom. Again, there have been some reforms to this system.
However, this is still problematic.
Use of hearsay and coerced testimony. The MCA still allows
for the use of evidence that has been obtained by torture or
evidence that is coerced, as long as it was obtained prior to
the passage of the Detainee Treatment Act in 2005. Also, the
Military Commissions Act shifts burden with respect to the use
of hearsay to the party opposing such use. This is a
fundamental shift in our system of justice and what we have
done in the past.
The Military Commissions Act included rules that allowed
for the monitoring of attorney-client communications, and these
rules disregard Common Article 3 protections.
One of the things that is most disturbing, I believe, to
our national prestige is that these rules, when taken together,
encompass what one can barely say is secondhand justice. This
was exemplified when our closest allies in the war on terror,
the British, asked for the return of all of their citizens who
were being detained at Guantanamo. Therefore, what they said
was that this system was not good enough for their people.
Thomas Paine said, ``He that would make his own liberty
secure must guard even his enemy from oppression; for if he
violates this duty he establishes a precedent that will reach
to himself.''
Senators, I would just suggest that we need to look
strongly at revising these rules and revising the way that we
treat the enemy combatants.
[The prepared statement of Colonel Gunn appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Colonel.
We will go through each of the witnesses and then open it
up for questions. The next witness is Kate Martin. She has been
the Director of the Center for National Security Studies in
Washington since 1992. She has litigated and written about a
broad range of national security and civil liberties issues,
including Government secrecy, intelligence, terrorism, enemy
combatant detentions, the author of several well-known
publications. Ms. Martin also served as General Counsel for the
National Security Archive from 1995 to 2001. In addition to
teaching strategic intelligence and public policy at Georgetown
University Law Center--I know that school well, having
graduated from there--Kate Martin graduated from the University
of Virginia Law School where she was a member of the Law
Review, and cum laude from Pomona College.
Ms. Martin, go ahead, please.
STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL
SECURITY STUDIES, WASHINGTON, D.C.
Ms. Martin. Thank you, Senator Leahy and Senator Kyl. I
want to begin by agreeing with Senator Kyl that the United
States does have a duty and an obligation to defend itself. I
also agree that the United States Constitution and its respect
for the rule of law is, in fact, the best system in the world.
I spent a number of years in the 1990s in Eastern Europe and
Russia helping to revise laws to deal with the leftover KGB and
was amazed, but not that surprised, to find that individuals
who had spent time in the Soviet gulags understood First
Amendment and due process protections and the United States
Constitution as well or better than many high school graduates
in the United States. And that is why I think that the
detention policy since 2001 is so disturbing and unfortunate
for our country.
I think that the individuals who crafted that policy in
secret, without consultation with the Congress, viewed the
constitutional system of checks and balances and the rule of
law as an obstacle to the United States ability to defend
itself, and that they ignored the repeated challenges by and
the views of the career military lawyers that respect for the
rule of law, the Constitution, and the system of checks and
balances is a source of strength for the United States.
Underlying all the claims, underlying all the detention
actions, which this Committee is well aware of, the detentions
and seizures in Afghanistan without following the standard
rules of war requiring Article 5 hearings, underlying the
seizures and kidnapping of individuals from the streets of
Europe with no due process to be transported to secret prisons
and abused, and underlying the claims that the President has
the authority to seize U.S. citizens and anyone else in the
United States and hold them secretly for years without access
to any kind of process is the claim that because we are at war,
actions are permitted and necessary.
In my limited time this morning I would like to suggest, a
framework for answering the difficult questions about how to
deal with detainees, people picked up on the battlefields of
Afghanistan and Iraq, people who are suspected terrorists in
Europe, and people who are suspected terrorists in the United
States. The simplest answer is that there is a straightforward
framework already available, and that is, to follow the law of
war when military force is being used on the battlefield, in
Afghanistan, and in Iraq, and to follow the criminal laws which
have proven successful in the United States and in Europe for
apprehending, detaining, and incapacitating individuals who are
suspected of being al Qaeda terrorists. A return to this
framework will restore U.S. credibility, it will strengthen our
national security, and it will end the uncertainty that has
been created as to what will happen to the detainees, the
difficulties that have been created with regard to the United
States relations with its allies, and most importantly,
perhaps, end the national security harm that has been done by
eroding the United States' ability to take the high ground and
be the most moral country in the world.
Finally, the issue that is perhaps most complex because of
the failure of this administration to follow either the laws of
war or the criminal law is what to do with the detainees in
Guantanamo. I believe those detainees will now be afforded due
process, as the Supreme Court has ruled. They will be entitled
a writ of habeas corpus and a hearing, and that process will
begin to sort out who can be detained, who should be released,
restore the United States position is the world and strengthen
our national security.
Thank you.
[The prepared statement of Ms. Martin appears as a
submission for the record.]
Chairman Leahy. I thank you very much.
Our next witness is David Rivkin, who is a partner in the
Washington office of Baker Hostetler, a visiting fellow at the
Nixon Center, contributing editor of the National Review
magazine. He practices in the area of public international law,
international arbitration, and policy advocacy, served on both
President Reagan's and President George H.W. Bush's
administrations with positions in the White House Counsel's
Office, Office of the Vice President, and the Departments of
Justice and Energy. Prior to his legal career, he served as a
defense and policy analyst. Mr. Rivkin holds a law degree from
Columbia University Law School--and we did not really try to
stack the deck with Georgetown people, but a Master's degree in
Soviet Affairs from Georgetown University. And he says in his
statement he agrees with Senator Kyl that he does not agree
with the title of the hearing.
Go ahead, Mr. Rivkin.
STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, BAKER HOSTETLER,
LLP, WASHINGTON, D.C.
Mr. Rivkin. Mr. Chairman Leahy, members of the Committee, I
appreciate the opportunity to appear before you today. I
certainly realize that many legal positions taken by this
administration to deal with the post-September 11 national
security challenges have not found favor with many critics.
With considerable respect, I disagree with this sentiment.
I start from the premise that, both as a matter of law and
policy, the tremendous challenge that this country had to
confront after September 11 was how to prosecute successfully a
war against al Qaeda, Taliban, and affiliated entities. That
successful war prosecution required the choice of an
appropriate legal paradigm. And as in all prior wars in
American history, and consistent with both international and
constitutional law requirements, this legal paradigm had to be
rooted in the laws and customs of war. And how to deal with
captured enemy combatants was certainly a key element of this
paradigm.
In general, while I do not endorse each and every aspect of
the administration's post-September 11 wartime policies, I
would vigorously defend the overall exercise of asking
difficult legal questions and trying to work through them. I
also strongly defend the overarching legal framework featuring
the traditional laws of war architecture that the
administration chose.
I want to emphasize here that--and I know I have been
somewhat preempted by Senator Kyl on this point--despite all of
the criticisms of the procedural facets of the administration's
detainee policy, detainees in U.S. custody today enjoy the most
fulsome due process procedures of any detainees or prisoners in
any war in human history. Indeed, the much maligned Combatant
Status Review Tribunals and Military Commissions, backed by
what I consider to be appropriate judicial review procedures,
are unprecedented in the history of warfare--and, by the way,
much more protective and much lauded international criminal
tribunals.
This, by the way, was the case even before the Supreme
Court's recent decision in Boumediene, which further augmented
the judicial review procedures. I will also submit to you that
the administration's legal positions up until recently have
been substantially upheld by the courts. I know that is not a
common perception, and I certainly appreciate the point made by
you, Mr. Chairman. But I think that in most cases, including
Hamdi, even Hamdan and Rasul, the U.S. Supreme Court law, while
tweaking various elements of the Government's positions, has
upheld the key legal proposition. And indeed, the two political
branches responded to the Court's decisions with changes in
policies, promulgating two major pieces of legislation--the
Detainee Treatment Act and the Military Commissions Act.
In my view, quite regrettably, in the just decided
Boumediene case, the Supreme Court has abandoned this approach
and effectively rendered non-viable a major portion of the
administration's wartime legal architecture, and Congress's for
that matter, even though it itself had helped to shape it for
several years. The Court has now taken a central role in
deciding who is an enemy combatant, ruling that detainees, akin
to criminal defendants, are constitutionally entitled to
challenge their confinement through habeas corpus proceedings
in Federal courts.
With all due respect to Senator Feingold, I think the
Boumediene decision is one of the most deplorable examples of
judicial overreaching and is flatly inconsistent with the
Constitution, historical practice, and case law.
But that aside, what I wanted to flag for you this morning
is more important, that for years the administration critics
have been saying that it is not a big deal to give detainees
constitutional protection and additional rights, whether
procedural or substantive in nature. It was only the
administration's obstinacy that was the problem. Well, in my
opinion, the critics could not have been more wrong, proving,
once again, that balancing individual liberty and public safety
is never a cost-free exercise. Granting detainees the right to
the traditional district court style habeas is going to be a
momentous decision with many consequences, all of which are not
good. We can expect that habeas proceedings will result in
overturning a number of enemy combatant classification
decisions of people in Guantanamo. In many cases, it would not
happen because they were innocent shepherds or aid workers, who
should not have been detained in the first place, but because
the Government simply lacks sufficiently fulsome evidence of
their combatancy or even if they do, they are facing a
Hobbesian dilemma that if they put this information in their
return, augmented return, it would run the risk of having this
evidence being disclosed, therefore jeopardizing the war
efforts. In my opinion, presented with this dilemma, what we
are going to do in the future, unfortunately, is what I call
catch-and-release policy. The United States for the first time
in the history of warfare, in the history of mankind, would
basically not be able to hold anybody on a long-term basis. We
would capture people, and to the extent they have good
evidence, they put them before--schedule them for trial before
military commissions. If they do not, they would have to
release them or turn them over to the host government. And I
would submit to you that that is not a great way to fight the
war.
Let me conclude by saying if there is a regular failure
here, in my opinion it is the regular failure by the courts to
abide by their constitutionally proper role, to conveniently
change that position as to what constitutes an appropriate
reach of the United States Constitution, and it is that
situation that has created considerable problems for this
country.
Thank you.
[The prepared statement of Mr. Rivkin appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Rivkin.
Ms. Martin, you make the point that the administration's
claims that the war on terror justifies its detention
practices. But then it does not use the rules applicable to
armed conflicts such as the Geneva Convention carrying out
these policies. Because we are at war, they also say our
criminal rules are inapplicable, so it is hard to see which
rules they feel are applicable.
Of course, it did not work out that way. The Supreme Court
has stepped in, and, Mr. Rivkin, I would disagree. I think they
have rebuked them four times. I do agree the entire legal basis
for the detention plan is somewhat in doubt, the military
Commissions system in disarray. Six years later, we are waiting
for the first trial in the military commission.
So I would ask you: What is the view--what is your view of
the administration's insistence that the fight against
terrorism, however defined, is too complex and difficult for
our existing legal system to handle, and that it should have
this sort of never-ending detainee policy?
Ms. Martin. I don't think there is any evidence at all to
support that proposition. What the administration has done is
basically make up law as it has gone along, and that has been
the cause of most of the problems. One might think that the
reason for doing so was to give them the opportunity to abuse
prisoners. Whether or not that was the real reason behind the
detention policy, I think that if you ask most career military
officers, they would agree that in the case of people picked up
on the battlefields of Afghanistan or Iraq, if they follow the
traditional laws of war as to the detention and capture of such
individuals, that those laws will be sufficient. They will be
able to detain dangerous fighters and not allow them to return
to the battlefield. They will not have to follow these criminal
law procedures that Mr. Rivkin is worried about. On the other
hand, when you find individuals in Europe or the United States
who are suspected of aiding or planning terrorist attacks, the
civilian criminal law has proved to be more than adequate to
apprehend those individuals and to put them away usually for
life.
Chairman Leahy. And you feel that both our civilian
criminal courts and our courts of military justice are
adaptable enough to handle these situations?
Ms. Martin. I do, and I believe, as to the civilian courts,
the Committee has heard testimony about the study done by Human
Rights First on the hundred or so terrorism prosecutions. And
military lawyers have been quite clear that the uniform courts
martial rules would be adequate to handle those detainees who
are charged with war crimes and who are subject to military
jurisdiction.
Chairman Leahy. Let me ask, Colonel Gunn, as you had
mentioned being in the office next to Mr. Haynes, just let me
tell you, I looked back in the book, the Mayer book. She talks
about a letter that Jim Haynes sent to me in the summer of
2003. It was about the administration's treatment of detainees.
There have been a lot of press reports that have come out about
cruel treatment of detainees. So I wrote Condolleezza Rice, who
was then our National Security Adviser, asking for a clearer
statement of the administration policy, whatever it might be.
And the response came from Mr. Haynes, and I will put a copy of
that letter in the record. He told me the Pentagon's policy was
never to engage in torture or in cruel, inhumane, and degrading
treatment of detainees. This was a part of that letter, but the
Pentagon released the letter to the press. And it was a great
statement. I agreed with the statement. Unfortunately, it was
not true. And it seemed almost like it was designed to silence
critics like myself, and actually critics within the
Department.
What is your reaction to stories like this one? Were career
military officers being listened to? Or was the policy set in
such a way that they were ignored?
Colonel Gunn. Senator, I believe it has previously been
reported here before the Senate, the Judge Advocates General--
at the time of--in 2002 I was Executive Officer to the then Air
Force Judge Advocate General, so I was in the front office on
the evening of the Pentagon at that particular time. I believe
based upon what I saw at that particular point and based upon
what had happened earlier and what was reported to me, there
was not a great interest in what the senior military officers
were saying.
When various components of the military commissions system
were being coordinated, it was coordinated in such a fashion
that very little time, for instance, was given to the Judge
Advocates General to provide a response. It seems as though
there was an interest in checking off and being able to say
that they had an opportunity to coordinate. However, there was
very little interest in their opinions.
It was not unusual, for instance, for a document of complex
rules and measures to show up on a morning and being told that
they had until that afternoon to return their feedback. So it
did not seem as though there was a real interest in what they
had to say.
Chairman Leahy. Thank you.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
Let me just ask all of the witnesses for very brief answers
to some questions here, and I will just start with you, Colonel
Gunn.
First of all, do you think that the D.C. Circuit appeals
rights provided to detainees until the DTA review provide less
process to detainees than does habeas review?
Colonel Gunn. I cannot say that I am familiar with those
rules, so I am not comfortable responding to that.
Senator Kyl. Ms. Martin?
Ms. Martin. Well, I believe the Supreme Court held that
they provided less process.
Senator Kyl. Thank you. Mr. Rivkin?
Mr. Rivkin. The Supreme Court certainly held in a portion
of Justice Kennedy's opinion talking about the lack of
equivalence between the DTA/MCA process and the traditional
habeas. I certainly do not like that opinion. I think it
mangles at least the--
Senator Kyl. It was upheld.
Mr. Rivkin. Yes.
Senator Kyl. In view of that--and I would just go back this
way here--is there any reason to preserve the alternative
system of DTA review now that the Supreme Court has granted the
detainees a right to pursue habeas review? Mr. Rivkin, would
there be any reason to retain DTA?
Mr. Rivkin. I would consider this question carefully, and I
would put it in two different parts. On the issue of DTA-style
prescribed review for decisions or condensed as review
tribunals is not only superfluous--in fact, I would volunteer
my opinion that the entire CSRT system is dead and in part
because there are not going to be CSRTs in the future because
we are not going to be detaining people. So habeas certainly is
all you are going to get there, and I think it is going to only
apply to the Guantanamo population. I could be wrong, of
course, but I don't think so.
On the military commissions side, my hope is that--and a
fair reading of Boumediene says nothing about military
commissions. Depending on what happens in the next couple days
before Judge Robertson--by Judge Robertson in a case styled
Hamdan II, if the military commission process gets going, which
I hope it will, none of the--and habeas being a collateral
entity, here you got people who are basically getting a fulsome
criminal justice level process. For that segment of the cases,
we might as well wait until the military process is complete,
and then you would go through the D.C. Circuit and to the
Supreme Court.
So my hope is habeas would be inapposite to this
population, but these days you never know. It depends on what
the courts would say.
Senator Kyl. Ms. Martin, do you believe that there is a
reason to preserve the DTA review in view of the Supreme
Court's ruling?
Ms. Martin. I am not sure, Senator. I think that we have
two problems before us. One is the future treatment of future
detainees. I think that needs to be put back on a regularized
footing. And the other problem is sorting out the detainees in
Guantanamo, which habeas courts are beginning to do. There are
many complicated questions, and both need to be played out.
There are different kinds of detainees at Guantanamo, and the
courts are now going to look at the law applicable to each of
them.
Senator Kyl. If you have just a bit to think about it and
you have the time and are willing to share a view with us about
that, after you have done that, would you be willing to just
drop us a note on that?
Ms. Martin. Certainly.
Senator Kyl. And, Colonel Gunn?
Colonel Gunn. I would just say what I am familiar with is
the Combatant Status Review Tribunal process, and I believe
that if those were changed in such a way to be deemed adequate,
it is very likely that a court would give those substantial
deference in the process. And the reason that I highlight the
Article 5 problem with the Article 5 tribunals is that that
said the fact that no Article 5 tribunals were ever
established, that led to the creation of the Combatant Status
Review Tribunals, which in turn led--I believe contributed to a
decision that led to habeas.
So I believe just going back and having adequate procedures
from the beginning is something that is desirable.
Senator Kyl. Right. Well, OK. We are just trying to
determine what we need to do with respect to the law at this
point.
The point I was trying to make earlier was not to criticize
anyone, but to make the point that a lot of people in this
Government--and, Colonel, you are aware of this--have tried
very hard to make this process work. And there was a statement
that I made in my opening comments, and David Rivkin actually
put it in his remarks. Let me just ask if any of you disagree
with this: He said, ``Despite all the criticisms of the various
procedural facets of the administration's detainee policy,
detainees in U.S. custody today enjoy the most fulsome due
process procedures of any detainees or prisoners of war in
human history.'' And he noted that that was even the case
before the Boumediene decision.
Do either of you disagree with that proposition?
Ms. Martin. I would disagree with that proposition. I think
it--
Senator Kyl. Well, if you do, then tell me a country that
had a procedure that was more fulsome in terms of
constitutional protection.
Ms. Martin. I think that both the U.S. citizen and the
legal resident of the United States who were seized and held
incommunicado for a number of years as enemy combatants were
not given the due process that is required by the Fifth and
Sixth Amendments of the Constitution, and--
Senator Kyl. The statement was that we enjoy the most--that
detainees held by the United States enjoy more protections than
those granted by any other country, and you disagreed. I am
just wondering, OK, where is their greater protection than what
the United States has provided?
Ms. Martin. The countries of Europe, when they prosecute
people for crimes who are alleged to be in the same position as
many of these detainees--I think that the problem, Senator,
respectfully, is that many of the detainees are not enemy
combatants. And so it doesn't answer the question to say do
they have the same process as prisoners of war. That is one
question. But they are not being held as prisoners of war--
Senator Kyl. OK. Let me--
Ms. Martin.--and they are not--you know, they are
criminals, not POWs.
Senator Kyl. My time is up. Think about that because in my
second round I am going to ask you the question again. If there
is somebody that does it better than we do, I would like to
know. And you say Europe, so I want you to be specific about
that when we come back, and I will ask Mr. Rivkin, too.
Thank you, Mr. Chairman.
Chairman Leahy. OK. We may be talking about different
things. I am sure that we will consider Abu Ghraib as not being
indicative of what we want to do, but I want to give Mr.
Rivkin--
Senator Kyl. No. I am talking about detainee policy. That
clearly was not the policy of the United States. People were
prosecuted for what they did in contravention of American
policy there. I think we would all agree on that.
Chairman Leahy. I will give Mr. Rivkin a copy of a recent
column by Ruth Marcus that responds to his point. They
characterize the rights given Guantanamo detainees as the
greatest in the world. And I will put a copy of that in the
record, and we can go on to that when we get back.
Senator Whitehouse, if you would take over, please? And
then Senator Cardin.
Senator Whitehouse.--[Presiding.] Thank you, Mr. Chairman.
It strikes me that one of the things that distinguished the
United States of America in history is that previous countries,
empires, regimes, that have amassed great power have ordinarily
done so through what you might call the hard use of force and
power; and that one of the things that makes us categorically a
bit different than previous powerful nations in history has
been that we have figured out or managed to figure out how to
use what I would call ``aspirational'' power.
My sense is that, you know, as the Earth spins and dawn
sweeps around its circumference and people wake up in the
morning and go off to do their business in countries on many,
many continents, their vision of what America offers and their
perception that we offer a new kind of leadership and a new
kind of Government and principles that adhere to individuals in
unique ways is something that provides our country enormous
strategic, diplomatic, economic, and other kinds of strength.
And I wonder if--let me start with you, Mr. Rivkin, first of
all, if you agree with that proposition; and if you do, if you
would care to quantify the extent to which you think that you
may have a better way of describing it. I describe it as sort
of aspirational power, that power of example and attraction, as
opposed to power of force and compulsion, how important that is
to our national strength and our national destiny.
Mr. Rivkin. Thank you, Senator. Of course, I give it a
sentiment, and that sentiment is correct, but that to me is
just the starting point of analysis. You have got to ask
several questions then.
Question No. 1--
Senator Whitehouse. Before you go off, if you don't mind
answering the quantification part of the question. How
important in your own words do you think that part of our
national character, reputation is?
Mr. Rivkin. It is quite important, and I would be foolish
to deny that we have suffered a considerable decline in what
some people have called ``soft power,'' which is what you were
talking about. The question you have to ask yourself, which we
as lawyers always ask: But for. Is that attributable to
Guantanamo? Is that attributable to some regrettable incidents
like Abu Ghraib? Is it attributable to a particular legal
paradigm at the sort of overarching level the administration
chose? Or is it attributable--
Senator Whitehouse. Is ``All of the above'' an option?
Mr. Rivkin. Excuse me?
Senator Whitehouse. Is ``All of the above'' an option in
that checklist?
Mr. Rivkin. Well, yes. But I would also submit to you, with
all due respect, Senator, that our European allies in
particular, if you accept the proposition I would advance, that
they are not serious about warfare, just like my good friend
Ms. Martin, they do not think it is, by and large, war. They do
not like the robust use of force. They do not like our rules of
engagement. They do not like our approach to surveillance. They
do not like our approach to interrogations. The price, Senator,
we have to pay to regain their respect is very high indeed. I
don't mind even paying the price as long as we clearly
understand we are talking about a policy tradeoff. The thing
that bothers me the most is that we are talking about the
administration's policy, this country's policy, as if it was
some kind of a shameless breach of our constitutional verities.
Let's pay more and let's accept additional risk, if that is
what it takes to make the Europeans happy. But let's be clear.
It is a policy tradeoff.
Senator Whitehouse. I am thinking less about, you know,
European politicians than I am about the fellow waking up in an
African village trying to figure out what his country and his
community should look like with Islamic recruiters beginning to
encroach and offering him a vision of the United States that is
a hostile and unwelcome one. It is not so much elite European
opinion that I am concerned about. It is the actual folks whose
names we do not know on the ground in villages and towns and
barrios we have never heard of, but who collectively hold the
United States in a particular kind of respect, or at least
always have, how powerful that force is. Elite opinion I am
less concerned with.
Mr. Rivkin. Very briefly, two answers to that.
Point No. 1, to some degree it is we ourselves--and,
unfortunately, as a byproduct this vigorous discourse about
what is right--have brought it upon ourselves, because if the
entire American body polity spent the last several years
basically feeling more positive about our policy and legal
choices, it would not have been as difficult to demonize it.
But perhaps it is inevitable in democracy.
And, second, I would say very frankly, here again there are
so many problems that some individuals who are inclined to move
toward this particular path have with us. Look at the Danish
cartoons. I mean, again, you always ask but for. If we had no
Guantanamo, if we didn't detain anybody, these people have
problems with our support for Israel, our position of
supporting repressive regimes in a world--this is not this kind
of hearing. It is not a foreign policy hearing. But I can spend
an hour telling you what problems they have with us, and unless
we are ready to beat them all, this rating on our entire
detention policy would not make that much difference with that
proverbial person waking up in the village.
Senator Whitehouse. My time has now expired, and in the
absence of the Chairman, I will recognize the distinguished
Senator from Maryland, Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman.
Let me followup on this line of questioning. I understand
that we have a real challenge in dealing with this new type of
threat against our country. But it is clear to me that our
Constitution and laws and our international commitments require
a certain degree of conduct that we did not comply with in
dealing with the detainees that we were able to apprehend after
the attack on our country on September 11th.
Now, the 9/11 Commission made certain recommendations, one
which I thought was an extremely important point dealing with
this issue, and that is that we should seek international
consensus as to how detainees in combat dealing with terrorism
would be treated so that we establish a conduct that is
recognized internationally and it is not just the United States
determining what is the appropriate conduct.
So I guess my question to us is: Recognizing where we are
today and the fact that we are going to have an election and
there will be a new administration that will be coming into
power in January, what advice would you give as far as whether
our current international treaties are adequate, whether we
need to negotiate new agreements, whether our current criminal
statutes are adequate to deal with this issue, what can we
learn from other countries. And in response to Senator Kyl's
point, it is my understanding that the House of Lords in Great
Britain has struck down indefinite detention, that you have to
bring people to trial. And, of course, we are still contending
that we can keep people indefinitely.
So what process would you recommend or do you think the
current laws are adequate?
Ms. Martin. Well, I will take the first stab at that,
Senator. I think that in general, the current framework is
adequate, and I think that there is--although I think a lot of
work is going to need to be done about working out the details
of how to deal with the different kinds of detainees at
Guantanamo and what to do about the military commissions that
have started, I think that it is--there is a grave danger of
trying to construct a new framework even in the context of
international treaty making, because we start from behind,
given where we are in the last 6 years. And as both you and
Senator Whitehouse have mentioned, I think the key thing is for
us to re-establish our position in the world and not be seen as
constructing a framework that is only to detain suspected
terrorists.
Senator Cardin. Well, let me challenge you at least as to
one part of that. Clearly, I cannot justify, nor do I want to
try to justify, the detaining of the individuals at Guantanamo
Bay for the length of time without being brought to trial, the
length of time being unable to seek counsel, and I could go on
with a whole list of things. But when a suspected terrorist is
first apprehended, there is a need for interrogation, and I am
not an intelligence officer, but I have been told that it is
compromised, if that individual has outside contact with
counsel.
So how do we reconcile the current need of interrogating
suspected terrorists with, as I think you and I agree, the
abuses of this administration? And how do we deal with moving
forward in our efforts to protect the people of this country,
but yet establish the appropriate framework knowing what has
happened during the past 5 years plus? Don't we need some
clarification of our laws or at least some international
sanction to the appropriate way to move forward?
Ms. Martin. Well, I think the details need to be worked
out, but generally when individuals are picked up in
Afghanistan or Iraq, they can be detained indefinitely until
the end of hostilities in those countries. Second, the military
has standard rules for interrogation, tried and true and good
rules for interrogation; Third, that if you find a suspected al
Qaeda member in Europe or the United States, he be arrested
under the criminal law, criminal suspects have been
interrogated for years quite successfully within the rules of
the criminal justice system. Indeed the FBI agents who
interrogated the al Qaeda individuals who were indicted and
convicted before 9/11 have made a very convincing case that
they were able to interrogate them within the law and obtain
useful information. But the problem was that that information
was not shared within the Government, not that the
interrogation--and that there is no--
Senator Cardin. But there is a question as to whether the--
at least the United States has raised, our Government has
raised the issue whether they are subject to the Geneva
Convention.
Ms. Martin. If the individuals who were picked up in Europe
and the United States had been picked up not as enemy
combatants but as suspected criminals, they would be--
Senator Cardin. But they changed--you know, right now they
use the classification to meet their needs. The United States
has done that.
Ms. Martin. Right, and that is the problem.
Senator Cardin. So moving forward, how do you move forward
without clarifying that? I am not sure I understand your
position that the current laws are adequate. It seems to me
that we do need to seek the support and understanding of the
international community moving forward. We are going to have
the opportunity with a new administration. I think we have got
to be prepared to go forward on that to restore not only the
point that Senator Whitehouse raised about the United States'
ability to affect support internationally for our values, but
also as a practical matter that these issues are going to be
with us moving forward.
Ms. Martin. I do think that the use of the criminal laws,
which is what our European allies use to detain and interrogate
individuals would be adequate in the United States. There is
one category of individuals which is difficult to figure out
whether they may be detained under the law of war or the
criminal law and that is Osama bin Laden. And I favor--my view
is that he could be detained under the laws of war, even if not
captured on the battlefield, but some disagree with that.
But that is a very small category of individuals, those who
planned the 9/11 attacks.
Senator Cardin. We will continue this. I guess my point is
that the international community may very well want a little
bit more definitive findings rather than leaving it to the
judgment of the United States in its current law's
interpretation.
Thank you, Mr. Chairman.
Chairman Leahy.--[Presiding.] Let me go into a couple of
things. Recently--and this is for you, Colonel--we read about
military commission judges and defense lawyers, even
prosecutors, being fired or replaced or being driven to resign,
apparently because they gave rulings adverse to the Government
or they were critical of the military commission process. And
you had mentioned earlier the lack of a chain of command.
If you start firing key participants or replacing them or
forcing resignations, doesn't this kind of give the impression
to not only us here in the United States but to the rest of the
world that somehow this thing is rigged? I am not trying to put
words in your mouth, but it bothers me when I see it.
Colonel Gunn. No, Senator. I am actually comfortable with
that terminology of saying that it gives the impression of a
rigged or sham proceeding. And I am familiar with what you are
referring to. My former Air Force colleague Colonel Morris
Davis was the chief prosecutor. He felt motivated--compelled to
resign from his position as chief prosecutor because the legal
adviser to the appointing authority, a person who was supposed
to have an impartial role, seemed to be more motivated by
political considerations than by making sure that we had a
system that was just and a system that functioned well. That
individual seemed to be motivated by having trials in such a
way that they might in some way influence the elections. And
Colonel David, when Mr. Haynes sought to change his reporting
chain, such that he reported directly to this person, he
rejected that notion and submitted his resignation.
The thing that I am proud about with respect to the system
is that when you looked at it individual by individual, there
are many folks that have done courageous things under that
system, both on the prosecution side as well as the defense
side. I am extremely proud of that.
However, the arrangement, the fact that there is no
independent chain for the defense counsel, the fact that that
was a problem that was anticipated and it was not addressed, is
quite disturbing.
Chairman Leahy. Thank you. We actually have had several
flag officers who have come in here and testified similarly,
and I think courageously, because they know that that may not
be what the Pentagon wanted to hear at the time.
I am reminded--which has nothing to do with this in way,
but I am reminded that shortly after the break-up of the Soviet
Union, a group of parliamentarians now from Russia came to
visit me--and a number of other Senators, but they came to talk
to me about judicial systems. And one of them said, ``Is it
true that in your country a lot of people can actually sue the
Government? '' And I said, ``Yes. It happens all the time.''
And he said, ``And are we right in understanding that sometimes
the Government loses? '' I said, ``Yes. Happens all the time.''
And they said, ``Well, didn't you replace the judge? '' And I
said, ``No.'' And I think it was almost like a light bulb going
on that we are truly independent. And that is the way I feel we
should be.
Now, I have been critical of aspects of the Military
Commissions Act. There was an attempt to deny detainees,
potentially others, from the habeas corpus rights. And Senator
Specter and I worked hard to restore those rights through
legislation. We got 56 votes in the Senate. Unfortunately, we
had a filibuster and we needed 60. I hailed the Supreme Court's
decision, Boumediene, because it recognized the constitutional
right to habeas. Mr. Rivkin is saying--and I will certainly
give you time to respond, Mr. Rivkin. The courts assumed it was
going to lead to chaos in the courtroom even worse than the
battlefield.
Am I right, Ms. Martin, that the decision creates no new
rights but simply restores what rights were there before the
Congress unwisely, and now apparently unconstitutionally, tried
to strip away habeas rights?
Ms. Martin. That is precisely true as you have noted, Mr.
Chairman. The Court, this very conservative Court decided, said
it was simply restoring the rights that existed there before.
Chairman Leahy. And just for the people who may be watching
this, habeas proceedings are not the same thing as a full trial
by any means. I think there are thousands of habeas petitions
heard every year through this country, and they are usually a
fairly quick hearing, are they not?
Ms. Martin. Yes, and I think if you look at the reason why
the Supreme Court, a conservative Supreme Court rebuffed the
Government and restored the habeas right is because Guantanamo
was set up to be a place beyond the reach of law. It was not
set up as a POW camp. It was not set up as a camp for prisoners
held as combatants under the traditional laws of war. It was
set up as a place where the administration could warehouse
people subject to no law. And the Supreme Court said that since
the Magna Carta the President may not pick up anybody he
chooses anywhere in the world and hold them indefinitely
without any court looking at the legality of the detention.
Chairman Leahy. My time is up. Senator Kyl, if you might,
Mr. Rivkin obviously has a different view, and I wonder if you
would have any objection to him giving his--
Senator Kyl. Go ahead, Mr. Rivkin.
Mr. Rivkin. Thank you very much, Mr. Chairman. I appreciate
it. Several rejoinders to my good friend Kate.
First of all, it is a canard that the reason Guantanamo was
chosen was solely because of what was believed at the time,
quite reasonably, a lack of Article III core jurisdiction. The
key reason Guantanamo was chosen is because it solved the Mindy
problem, because it is dangerous--I don't think anybody would
disagree--to hold several hundred enemy combatants. Remember
all the history of the IRA trying to liberate their colleagues.
And as a matter of fact, don't take my word for it. The last
time I checked, there was a vote last year in the Senate 94-3
against moving any detainees here.
But leaving that aside, on the question of what is the cost
of habeas, first of all, with all due respect, Mr. Chairman, to
the extent that--and I was present during the Boumediene oral
argument. I remember. Justice Scalia posed a question to the
lawyers, to the counsel for Mr. Boumediene asking for one
example, one example in American history, in wars that we
engaged in where enemy combatants were given access by habeas
to the judicial system, and the answer was none. That was not
the case in the Revolutionary War--that was before the
Constitution--not the case in the Civil War, not the case in
World War I or World War II. So whether it existed there or not
is a different issue, but the thing that bothers me the most
is, frankly, the perception that it is very easy. I can tell
you, it is not very easy because the style of habeas review
that would be exerted here is quite different from that in a
normal criminal case. We are talking about hundreds of Justice
Department attorneys, beginning with 50, working on returns. We
are talking about not only 200 pending cases with the detainees
now, but roughly 300 old cases that have been held in abeyance.
We are talking about a flurry of motions. We are talking about
disputes over discovery. The--
Chairman Leahy. Mr. Rivkin, you were in the administration.
Were you consulted on the choice of Guantanamo?
Mr. Rivkin. No. I was obviously not consulted on the choice
of Guantanamo.
Chairman Leahy. I was just curious.
Mr. Rivkin. But I recall at the time--and since I am not in
the administration, I would not be consulted in such matters.
But I do recall vividly at the time Guantanamo was chosen
talking to people and asking them, just informally, what were
the key policy drivers, and, yes, one of the policy drivers, as
I understand it, was the view that, consistent with the then
existing legal baseline, there would be no legal jurisdiction.
But another key problem was nobody wanted to have in her or her
district 200-plus enemy combatants. And I don't think that has
changed today.
But the last thing I would say very briefly -and I
appreciate the opportunity to let me explain this. We are
talking about a very difficult situation. A number of people
will be held not to be enemy combatants--I stipulate that,
everybody agrees with that--because of restrictions on
transferring people to deferred country where they might be
mistreated. We cannot find a home for them. And under
immigration laws, you basically can hold people for 6 months.
So in the not too distant future, Mr. Chairman, we are going to
face a spectacle of--unless you change the law, of giving some
kind of a parole or asylum in the United States to a bunch of
people who are not necessarily innocent shepherds and aid
workers.
Chairman Leahy. I won't go into the case of Mr. Arar, who
was a Canadian citizen, because he just wanted to go back to
Canada where he is a citizen. Instead, we sent him to Syria
where he was tortured and eventually returned to Canada, and he
got about a $2 million settlement because of that. So it is not
always quite as neat as you might suggest.
Senator Kyl?
Senator Kyl. Well, thanks. Let me just followup on this
question, because I think it is obvious that there is a severe
practical problem. Let me ask all of you, please, to keep your
answer yes or no, if you could. Do you think that a Federal
habeas court in the U.S. would have the authority to order that
a detainee be released into the United States? Colonel Gunn?
Colonel Gunn. I believe that they would have such
authority, but would not exercise it as a practical matter.
Senator Kyl. OK. Interesting.
Ms. Martin?
Ms. Martin. The only court ruling I know of said it does
not have authority. I think that ruling will be appealed, and I
hope that the court does have the authority. I do not think
they will have occasion to exercise that authority.
Senator Kyl. Mr. Rivkin?
Mr. Rivkin. I do not think they do have the authority, but
I would bet you anything, Senator Kyl, that we will find a
judge in months to come that would rule differently.
Senator Kyl. Well, if they do--let's assume for the moment,
take Ms. Martin's question, that they would not exercise that
authority. Your postulate was that an individual could not be
voluntarily returned to his country because of either, A, the
fact that the country would not take him or, B, our concern
that he would be tortured and mistreated in that country. What
is the alternative if we cannot find a country to take such a
person? I will turn to Ms. Martin first and then to you.
Ms. Martin. The alternative would be to allow him into the
United States. But, of course, we are only talking about
individuals whom the district court and the court of appeals
have found are innocent and that--
Senator Kyl. Excuse me. No, no. The question was not guilt
or innocence. You are aware of that.
Ms. Martin. Well, they have found that the Government has
no evidence and there is not a reasonable doubt standard to
allow the Government to continue to hold him. My experience as
a litigator for many years is that it is going to be extremely
difficult to find three Federal judges--one district court
judge and two appeals judges--who are going to sign, who are
going to order the release of someone when the Government has
real evidence that this person is a dangerous person. That just
has not happened, and it is not going to happen.
Senator Kyl. Under the procedures that the Government has
utilized thus far, which try very hard to distinguish people
that are dangerous and those that are not--and we have
returned, I think, something like 300, close to 300 detainees
from Guantanamo Bay, the latest statistic I have is that at
least 35 of those detainees who have been released from Gitmo
have returned to committing acts of terror and have ended up
killing people from other countries. Just, for example, a few
months ago, they released a Kuwaiti detainee who committed a
suicide bombing in Mosul, Iraq, killing seven Iraqis. So even
when we try to make the decision as to whether we think
somebody is safe to release or not, it has been very clear that
about 10 percent of them have not been safe at all. And that
does not even get to the point of trying to figure out, since
when they were captured there was not this standard that you
have to have evidence to satisfy a habeas court to justify
their detention, I do not know where that evidence is going to
come from.
Mr. Rivkin, I did not give you a chance to answer.
Mr. Rivkin. Very briefly, I cannot disagree with Kate more,
precisely because I assume a district court and an appellate
court judges are going to in good faith follow the teaching of
the Supreme Court. If you look carefully at the Boumediene
decision, it envisions a traditional habeas in an environment
where, as you, Senator, correctly pointed out, the Government
has not amassed a factual record that would approach that in
the criminal justice system, not because, again, the wonderful
people--and, by the way, with all due respect, guilt or
innocence is not at all an issue here. The narrow question in
the habeas case is, Does the Government have evidence to hold
the person? And you can have two situations. You can have a
Government that is not able to prepare a sufficient return just
because this is--a battlefield is not a CSI scene. Or you can
have an even more Hobbesian problem where the Government does
have such evidence but is afraid to put it in the return
because, remember, if your return is sufficient, it is only a
prima facie case. Then the burden shifts. Then the defense
counsel would press for discovery. Can you imagine the silly
spectacle of a country in the middle of a war having attorneys
for an--this is where the return is sufficient, so you know the
person is presumptively an enemy combatant. His lawyers are
pressing for discovery about intelligence information?
So a lot of these people would be let go. I mean, we are a
Government of laws, not man. The judges may feel terrible about
it, but the table where Justice Kennedy sat, we all have to sup
at. They will be released, and under the current law they can
be held in immigration custody for 6 months. If you cannot find
a country willing to take them or wanting to take them, it does
not provide adequate assurances of your treatment. So some of
these people, unless you change the immigration law, they will
be released here.
Senator Kyl. Let me just ask one last question. Ms. Martin,
you made the distinction between a battlefield capture and a
capture off of the battlefield, but the laws of war are
adequate to deal the person captured on the battlefield, you
said. Does that include habeas rights? Is there anything in the
laws of war that entitle people to habeas protection?
Ms. Martin. The individuals captured on the battlefield and
held in Afghanistan or Iraq under the laws of war may well not
be entitled to habeas. The Supreme Court has not decided that.
The problem in Guantanamo is quite different. Many of those
were not captured on the battlefield, and those who were
captured on the battlefield were not accorded the rights that
they were due under the laws of war, and so now are being given
habeas.
Senator Kyl. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator--
Mr. Rivkin. Just 30 seconds. I wish it were so. If you look
at Justice Kennedy's opinion, he makes no such distinctions,
and we have attempted habeas petitions with people held in
Bagram and Tambuka. The logic of a majority's position has
nothing to do with where you were captured. So basically, the
United States is out of the detention business, unfortunately,
for good.
Senator Kyl. All right. Let me thank all the panel. I am
about half an hour late to get to the floor now myself, so I am
going to have to run.
Thank you.
Chairman Leahy. Thank you.
Ms. Martin, did you want to respond to that?
Ms. Martin. Well, yes. I read Justice Kennedy's decision as
much more limited. It is completely tied to the facts of
Guantanamo. I think the Supreme Court has been very clear about
deciding one issue at a time. At the moment, it has decided
that the individuals being held at Guantanamo have the right to
habeas corpus.
I think that if we have a new detention regime where
individuals who are captured on the battlefield are treated
according to the laws of war, they are not abused, they are
given their Article 5 hearings, you will not have Federal
district courts or the Supreme Court reaching out to say we
need to have judicial review of detentions in Afghanistan or
Iraq.
I know that people are seeking that, but I am doubtful that
the courts will go in that direction.
Chairman Leahy. Thank you.
Colonel Gunn. And, Senator, if I may, the Supreme Court
decision does not overrule the Eisentrager decision from the
1950s, which held that German combatants that had been captured
in China after World War II had ended, that they were not, in
fact, entitled to habeas protections. And that decision was the
fundamental reason why the detainees were being kept at
Guantanamo. I think the lawyers and the administration that
viewed that as a basis for saying that Guantanamo was a safe
zone that would not be subject to habeas protections, even
though it has been cut back, the Supreme Court and Justice
Kennedy goes on to say in Boumediene that that decision does,
in fact, remain intact and that you have to look at the facts
and circumstances.
It is a fundamental law of war that a combatant--a nation
can hold a combatant who is captured for the duration of
hostilities. That remains in effect. And so Guantanamo is a
unique situation.
Chairman Leahy. Thank you very much.
Senator Whitehouse?
Senator Whitehouse. Thank you, Chairman. Just two quick
responses to the debate that sort of swirled around me.
First of all, I read Justice Kennedy's decision exactly the
same way, highly Guantanamo specific. So at least you have one
supporter of that view on this panel. I am a little surprised,
frankly, that Mr. Rivkin, given other views you share, sees
this as such a broad mandate. I mean, it might not be a bad
thing, but I certainly do not think it is where they went.
The second point is that I think this question of the
release of detainees who have gone back to the battlefield
frankly is not a helpful fact in arguing the question that we
are arguing. As I understand it, all of those folks were
released by the Bush administration, and it was an executive
determination, and it proved to be significantly erroneous. And
perhaps had their procedures been a little better and they felt
they were up against the standards of following law of war and
so forth, they would not have made those improvident releases.
In many ways, you could actually -you could turn that argument
either way. So I am not particularly impressed by that.
I would like to followup a little bit on Guantanamo, which
I think at this point is pretty much conceded by all parties a
stain on our national character. And I note with particular
interest in the decision in Parhat v. Gates, the Court, at page
34, is addressing an argument by the Government seeking to
designate as protected any names and/or identifying information
of U.S. Government personnel. And they describe the argument in
favor of this by the Government, by the Bush administration. It
says--this is the Government's words, quoted in the opinion.
``It is appropriate to protect from public disclosure
unclassified information identifying Government personnel
because the risks to the safety of those personnel,
particularly those who often deploy to locations abroad, would
be heightened if their involvement in the detention of enemy
combatants at Guantanamo were made public.''
That to me is kind of a high watermark. The Government of
the United States is conceding in court that Guantanamo is such
a blot on our national character and reputation that it now, as
a matter of security, is important that we not disclose anybody
who worked there because it has become so offensive that it is
now a risk to their safety to be associated with our conduct of
that episode. So given that, it seems to me to be a matter of
particular importance that we close Guantanamo.
I am a fisherman, not a very good one, and I have had the
experience that some problems you get into are very hard to
unsnarl. You can spends hours trying to undo a knot in your
line that took 30 seconds to get into. And I am afraid that
this Guantanamo mistake is now going to be very, very difficult
to unsnarl. I see it as having legal dimensions, military
dimensions, intelligence dimensions, corrections dimensions,
diplomatic dimensions, logistical dimensions, JAG--so assume,
A, that Guantanamo is, in fact, something we need to put behind
us as a country and we need to try to move on as quickly as
possible. Would it not be important in unsnarling that
particular mess to have some sort of body that drew from all of
those different areas of expertise to advise Congress on how to
do this right and in the most effective way, sort of a
Guantanamo Base Closing Commission of some kind? And what would
your thoughts be on that, and what skills sets do you think
should be involved in that?
Since I spent all my time with Mr. Rivkin last time, let me
start with Ms. Martin this time.
Ms. Martin. I totally agree that it is a terrible snarl of
a problem. I think that the habeas courts will begin to unsnarl
that problem. There are some 200 people, I think, still there.
I assume no more people will be transferred there. I think
about 60 of them have been cleared for release and that the
Government presumably will find a place to send them sooner or
later. So we are really only talking about 100 or so people.
Given the fact that they are entitled to habeas and those
proceedings will go forward, the lawyer in me thinks, well, the
courts will sort some of this out. There are some underlying
issues about the definition of ``enemy combatant'' which are
difficult. Perhaps a commission might be useful, and Congress
needs to look at that question. But the initial question of are
the wrong people being held--I think the habeas courts will do
a good job sorting some of that out.
Senator Whitehouse. It could take years, and in the
meantime you still have to hold everybody at Guantanamo, and it
remains--
Ms. Martin. I am not sure it will take years. I think the
courts, once--I suppose the Government might try to delay it.
It could take years.
Senator Whitehouse. I am sorry. My time expired, and I went
over. My apologies, Mr. Chairman.
Chairman Leahy. That is OK. Did you have a further
question, Senator?
Senator Whitehouse. No. That was it. I am interested in how
rapidly we can close Guantanamo and what the--
Chairman Leahy. Because of the situation--
Senator Whitehouse.--Government mechanism should be for
overseeing it to make sure it is done right and rapidly.
Mr. Rivkin. May I weigh in very briefly on just--
Chairman Leahy. Very briefly, because we are going to have
to go back to the floor. And, incidentally, I will keep the
record open for each of you if you want to add to your
testimony or put anything. Obviously, I do not want to cutoff
any one of you on that, so you have that chance to add to it.
Mr. Rivkin. Thank you, Mr. Chairman. The only thing I was
going to say is there is actually not a whole lot to do on the
purely legal side. I agree with Kate in this respect. Let the
habeas process work its way.
A number of people will be determined not to be enemy
combatants. At least the Government has been able to do that.
You need to decide if you want to change immigration law to
enable the U.S. to hold them in immigration custody or not.
That is your decision.
The biggest issue is political. Where are you going to put
those people? Surely it would not be fair for the President
alone, this President or his successor, be it Republican or
Democrat, unilaterally to decide to impose that burden on
people around, you know, Charleston or in any other location.
So that is the issue for you to decide. Where do you want them
to go?
Senator Whitehouse. Just for the record, maybe you can fill
me in if it is not correct. I am not aware of a single human
being who has ever escaped from a Federal correctional
institution, ever.
Mr. Rivkin. It is not so much escape, Senator, with all due
respect. There is a very real possibility there will be an
unsuccessful but very bloody effort to rescue them, just like
all the efforts to rescue IRA terrorists, which were mostly
unsuccessful. If I were living in close proximity to Fort
Leavenworth, I would not be very happy about it. I would
strongly suspect--I forget her name, the woman who represents
the District where Fort Leavenworth is, if I am not mistaken,
in the discussion of this issue basically said on the House
floor, ``Over my dead body.'' And all of you voted 94-3 last
year against the idea of transferring detainees here.
Ms. Martin. I just want to say I have more confidence than
Mr. Rivkin in our intelligence agencies and FBI and that there
will be no bloody attack on a Federal correctional institution
in the next 10 years, no matter who is in prison there.
Chairman Leahy. I also think that we would not have the
kind of obvious cooperation that went on in other countries
that terrorists had broken into prisons. I have a lot more
confidence in our Federal corrections system.
I am going to enter into the hearing record the written
testimony of Ramzi Kassem, a clinical lecturer in law, Robert
Cover Teaching Fellow at Yale Law School. He has represented
seven detainees at the U.S. Naval Base in Guantanamo. At my
request he provided his thoughts to the Committee on the
administration's detainee policies and he shares the changes he
feels necessary, and I will put that in the record.
And both of the Senators who are going to be nominated to
succeed the President--Senator McCain and Senator Obama--spoke
yesterday about the current challenges we face in restoring
America's leadership and making America safer in a dangerous
world.
As part of America's new strategy, we have to restore a
sound legal footing and respect for the rule of law in how we
deal with detainees. If we are going to reclaim our leadership
in the world, we have to return to the America whose ideals and
practices were the beacon of hope and human rights for the
world.
There will be no--pro or con, there will be no comments
from the audience.
I think that great strength has been sacrificed to a great
extent, certainly those of us who travel around the world and
talk to those nations that were solidly behind us the day after
9/11. Even since then, today we know how much we have lost.
This Committee, with our newly created Subcommittee on
Human Rights and the Law, our Subcommittees on Terrorism,
Courts, Crime and the Constitution, can help. We will have
other hearings on this. We will hear from both sides. It is not
so much for legislation now. That will not occur. But for being
able to give advice not only to the next President. The next
President will be sending his Attorney General before this
Committee, the Attorney General nominee, as well as many of the
others in the Department of Justice for confirmation. I want to
make sure that the questions asked by both Republicans and
Democrats reflect what is going on.
There was a suggestion we have not had oversight on this up
until last year. To a large extent, that is true. I do recall,
in due respect to the Republican Chairman of the Committee, he
was prepared to hold those hearings, had subpoenas prepared to
go out. It was blocked by the Vice President who said we should
not be asking questions. Frankly, in a free Nation, a free
country, we should never be afraid of asking question.
With that, we will stand in recess.
[Whereupon, at 11:43 a.m., the Committee was adjourned.]
Questions and answers and submissions for the record
follow.]
[GRAPHIC] [TIFF OMITTED] T4818.001
[GRAPHIC] [TIFF OMITTED] T4818.002
[GRAPHIC] [TIFF OMITTED] T4818.003
[GRAPHIC] [TIFF OMITTED] T4818.004
[GRAPHIC] [TIFF OMITTED] T4818.005
[GRAPHIC] [TIFF OMITTED] T4818.006
[GRAPHIC] [TIFF OMITTED] T4818.007
[GRAPHIC] [TIFF OMITTED] T4818.008
[GRAPHIC] [TIFF OMITTED] T4818.009
[GRAPHIC] [TIFF OMITTED] T4818.010
[GRAPHIC] [TIFF OMITTED] T4818.011
[GRAPHIC] [TIFF OMITTED] T4818.012
[GRAPHIC] [TIFF OMITTED] T4818.013
[GRAPHIC] [TIFF OMITTED] T4818.014
[GRAPHIC] [TIFF OMITTED] T4818.015
[GRAPHIC] [TIFF OMITTED] T4818.016
[GRAPHIC] [TIFF OMITTED] T4818.017
[GRAPHIC] [TIFF OMITTED] T4818.018
[GRAPHIC] [TIFF OMITTED] T4818.019
[GRAPHIC] [TIFF OMITTED] T4818.020
[GRAPHIC] [TIFF OMITTED] T4818.021
[GRAPHIC] [TIFF OMITTED] T4818.022
[GRAPHIC] [TIFF OMITTED] T4818.023
[GRAPHIC] [TIFF OMITTED] T4818.024
[GRAPHIC] [TIFF OMITTED] T4818.025
[GRAPHIC] [TIFF OMITTED] T4818.026
[GRAPHIC] [TIFF OMITTED] T4818.027
[GRAPHIC] [TIFF OMITTED] T4818.028
[GRAPHIC] [TIFF OMITTED] T4818.029
[GRAPHIC] [TIFF OMITTED] T4818.030
[GRAPHIC] [TIFF OMITTED] T4818.031
[GRAPHIC] [TIFF OMITTED] T4818.032
[GRAPHIC] [TIFF OMITTED] T4818.033
[GRAPHIC] [TIFF OMITTED] T4818.034
[GRAPHIC] [TIFF OMITTED] T4818.035
[GRAPHIC] [TIFF OMITTED] T4818.036
[GRAPHIC] [TIFF OMITTED] T4818.037
[GRAPHIC] [TIFF OMITTED] T4818.038
[GRAPHIC] [TIFF OMITTED] T4818.039
[GRAPHIC] [TIFF OMITTED] T4818.040
[GRAPHIC] [TIFF OMITTED] T4818.041
[GRAPHIC] [TIFF OMITTED] T4818.042
[GRAPHIC] [TIFF OMITTED] T4818.043
[GRAPHIC] [TIFF OMITTED] T4818.044
[GRAPHIC] [TIFF OMITTED] T4818.045
[GRAPHIC] [TIFF OMITTED] T4818.046
[GRAPHIC] [TIFF OMITTED] T4818.047
[GRAPHIC] [TIFF OMITTED] T4818.048
[GRAPHIC] [TIFF OMITTED] T4818.049
[GRAPHIC] [TIFF OMITTED] T4818.050
[GRAPHIC] [TIFF OMITTED] T4818.051
[GRAPHIC] [TIFF OMITTED] T4818.052
[GRAPHIC] [TIFF OMITTED] T4818.053
[GRAPHIC] [TIFF OMITTED] T4818.054
[GRAPHIC] [TIFF OMITTED] T4818.055
[GRAPHIC] [TIFF OMITTED] T4818.056
[GRAPHIC] [TIFF OMITTED] T4818.057
[GRAPHIC] [TIFF OMITTED] T4818.058
[GRAPHIC] [TIFF OMITTED] T4818.059
[GRAPHIC] [TIFF OMITTED] T4818.060
[GRAPHIC] [TIFF OMITTED] T4818.061
[GRAPHIC] [TIFF OMITTED] T4818.062
[GRAPHIC] [TIFF OMITTED] T4818.063
[GRAPHIC] [TIFF OMITTED] T4818.064
[GRAPHIC] [TIFF OMITTED] T4818.065
[GRAPHIC] [TIFF OMITTED] T4818.066
[GRAPHIC] [TIFF OMITTED] T4818.067
[GRAPHIC] [TIFF OMITTED] T4818.068
[GRAPHIC] [TIFF OMITTED] T4818.069
[GRAPHIC] [TIFF OMITTED] T4818.070
[GRAPHIC] [TIFF OMITTED] T4818.071
[GRAPHIC] [TIFF OMITTED] T4818.072
[GRAPHIC] [TIFF OMITTED] T4818.073
[GRAPHIC] [TIFF OMITTED] T4818.074
[GRAPHIC] [TIFF OMITTED] T4818.075
[GRAPHIC] [TIFF OMITTED] T4818.076
[GRAPHIC] [TIFF OMITTED] T4818.077
[GRAPHIC] [TIFF OMITTED] T4818.078
