PDF Version

                                                        S. Hrg. 110-531



                               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

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                       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
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            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




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


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



                        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.

                      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 
    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 
    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?

                        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 
    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 
    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.

                       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 
    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?


    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.


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


    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.

                     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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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