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                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                              JULY 8, 2009


                           Serial No. 111-18


         Printed for the use of the Committee on the Judiciary

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

50-861                    WASHINGTON : 2009
For sale by the Superintendent of Documents, U.S. Government Printing 
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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel

                            C O N T E N T S


                              JULY 8, 2009


                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     3
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     4
The Honorable William D. Delahunt, a Representative in Congress 
  from the State of Massachusetts, and Member, Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties............     6
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     7


The Honorable Adam B. Schiff, a Representative in Congress from 
  the State of California
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Lieutenant Colonel Darrel J. Vandeveld, former prosecutor, 
  Guantanamo Bay Military Commissions
  Oral Testimony.................................................    16
  Prepared Statement.............................................    18
Ms. Deborah N. Pearlstein, Associate Research Scholar, Woodrow 
  Wilson School of Public and International Affairs, Princeton, 
  Oral Testimony.................................................    23
  Prepared Statement.............................................    26
Mr. Thomas Joscelyn, Senior Fellow, Foundation for Defense of 
  Democracies, Washington, DC
  Oral Testimony.................................................    42
  Prepared Statement.............................................    45
Ms. Denise ``Denny'' LeBoeuf, Director, John Adams Project, 
  American Civil Liberties Union, New Orleans, LA
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61


Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................     9


Material Submitted for the Hearing Record........................   113



                        WEDNESDAY, JULY 8, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Delahunt, 
Johnson, Sherman, Jackson Lee, Sensenbrenner, Franks, King, 
Gohmert and Smith (ex officio).
    Staff Present: Heather Sawyer, Majority Counsel; Sam Sokol, 
Majority Counsel; David Lachmann, Majority Subcommittee Chief 
of Staff; and Paul Taylor, Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. I will now recognize myself for a 5-minute opening 
    Today the Subcommittee examines the military commission 
system and, more importantly, how we as a Nation can work 
together productively to clean up the terrible legacy of the 
Bush administration's detention policies in a manner that 
provides us with a legitimate legal framework going forward.
    One question which arises immediately in view of the 
apparent Administration position, as stated yesterday by 
Department of Defense general counsel Jeh Johnson that we can 
hold indefinitely even people acquitted in the military 
tribunal, is what is the purpose of the military tribunal in 
the first place; indeed, what is the purpose of any court 
hearing if the judge can say you're acquitted and remanded for 
indefinite detention? What's the purpose of a trial in that 
    Over the past 7 years, approximately 800 individuals have 
been detained at Guantanamo Bay in Cuba, with some 500 already 
having being released before President Obama took office in 
January. In those 7 years only three detainees were convicted 
of terrorism offenses by military commissions. Approximately 
240 individuals remain in Guantanamo. Most of these men have 
been held for at least 4 years, some have been detained for 
more than 6 years, all without being charged or tried or 
convicted of any crime, a blot on American justice by any 
    In addition to Guantanamo we've also detained individuals 
in other parts of the world, including Afghanistan. Some of 
these cases are fairly straightforward; some are not. But for 
each of these cases, we need to have a means of determining 
whether the individual is a combatant, lawful or otherwise; 
whether they are guilty of a crime; and whether they are a 
threat to the United States. We must decide how to deal with 
these individuals in a manner that ensures that our Nation is 
protected from those who would do us harm, and that is 
consistent with our laws, our treaty obligations and our 
    This is the United States of America, and we have 
traditions and beliefs worth fighting for and worth preserving. 
The problem will not go away simply because we have closed 
Guantanamo. We are still fighting in Afghanistan and Iraq. We 
are still battling terrorists around the world. We will 
continue to have to intercept and detain individuals who have 
attacked us, or who have threatened us, or who we believe, 
perhaps mistakenly, to do so. We need to be sure that however 
we handle these cases, we do not conduct kangaroo courts. 
Remember what it is we are trying to do here. We need to sort 
out who among these detainees are truly dangerous, who have 
truly done something for which they must be detained and who 
has not.
    These detainees are accused terrorists. While the previous 
Administration was fond of reminding people that the detainees 
were the worst of the worst, the Bush administration, in fact, 
released a vast majority of them, approximately 500 in all. 
Presumably they did not believe they were releasing the worst 
of the worst. The people who we have detained because they were 
turned over to us by someone with a grudge or by someone who 
wanted to collect a bounty, and who have, in fact, committed no 
offense against us, do not belong in detention. We have an 
obligation to determine who should and should not be in 
detention, and to afford fair trials to those who we believe 
have committed crimes, and to release all others. This is 
especially important if our government plans to seek prison 
sentences or to execute those convicted.
    This debate has been dominated by a great deal of fear-
mongering. That is no way to deal with a problem of this 
magnitude. As much as some people would like to drop these 
detainees down a hole and forget about them, that is simply not 
an option legally or morally. It is also not necessary. We are 
not the first country in history to have to deal with 
potentially dangerous people. Indeed, this is not the first 
time this country has had to deal with potentially dangerous 
    I can assure my colleagues who are terrified that some of 
these detainees might be brought to the U.S. that we can handle 
it. We have got a few such guests in my district in New York in 
secure facilities, and we know how to deal with them. People 
are not panicking in the streets, and no one has been harmed.
    We would never tolerate this sort of detention policy from 
any other nation, especially directed against our citizens, and 
we should not accept it in ours.
    I do not want to underestimate the enormity of the 
challenge both from a security standpoint and a legal one. Some 
of these people are extremely dangerous, and some of them have 
done some truly terrible things. We need to be sure that we are 
protected from harm.
    It is also true that the Bush administration's rampant 
lawlessness has erected legal obstacles to pursuing some of the 
cases that need to be prosecuted. To give a prime example, the 
use of torture, as military prosecutors have told us, may have 
made some prosecutions impossible in all but the most farcical 
of trials. This is an unnecessary obstacle, but a real one. We 
cannot ignore it; we have to deal honestly with it.
    I look forward to the testimony of our witnesses today, and 
I hope that you will be able to provide some guidance as we 
seek a legal regime to deal with our problems going forward.
    Thank you, and I yield back the balance of my time.
    I would now recognize our distinguished Ranking Minority 
Member, the gentleman from Wisconsin, Mr. Sensenbrenner, for 
his opening statement.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Between 1993 and 2001, this country took the approach of 
prosecuting terrorism in courtrooms as criminal defendants 
rather than fighting them on the battlefield as foreign 
enemies. That approach was a disaster as during those years 
less than three dozen terrorists were neutralized, and 3,000 
innocent Americans and people who were in this country as 
guests were killed during the 9/11 attacks.
    Today it appears the Obama administration is increasingly 
retreating to this failed approach. The Justice Department has 
already struck a sweetheart deal with the first enemy combatant 
to be tried on U.S. soil. That terrorist, Ali al-Marri, is a 
longtime member of al-Qaeda, who admitted to plotting attacks 
with cyanide gas at U.S. dams, waterways and tunnels, but he 
only stands to receive at most a paltry 15 years in jail under 
the plea agreement reached by the current Administration.
    The Attorney General has also announced the prosecution of 
another known terrorist named Ghailani, who served al-Qaeda as 
a document forger and explosives trainer at a terrorist camp 
and a bodyguard for Osama bin Laden until he was captured by 
the military in 2004. But he will only be prosecuted for his 
involvement in the separate bombing that occurred in the 
1990's. His prosecution literally assumes that 9/11 never 
    That is apparently just a prelude of things to come. As 
described in the Los Angeles Times, the FBI and Justice 
Department plan to significantly expand their role in global 
counterterrorism operations, part of a U.S. policy shift that 
will replace a CIA-dominated system of clandestine detentions 
and interrogation with one built around prosecutions. This new 
approach reportedly entails reading more and more terrorists 
Miranda rights, including the right to remain silent, that will 
deny us vital information to thwart future attacks.
    For example, the Wall Street Journal recently reported that 
the Administration's Office of Legal Counsel concluded that 
detainees tried by military commissions should be given 
constitutional protections against self-incrimination over the 
objections of the Defense Department. Although Attorney General 
Holder denied it in a recent hearing, President Obama's own 
Solicitor General admitted that the physical presence of 
detainees in the U.S., even if they're just detained here for 
trial, will lead to their being granted greater constitutional 
rights. That admission came in the form of a brief submitted to 
the Supreme Court by Solicitor General Elena Kagan, who opposed 
a court's authority to order foreign terrorists released in 
this country. In her brief she repeatedly recognized the 
critical distinction the Supreme Court has drawn between an 
alien who has effected an entry into the United States and one 
who has never entered. Indeed, Solicitor General Kagan 
cautioned the Supreme Court not to blur the previously clear 
distinction between aliens outside the United States and aliens 
inside this country or at its borders. This basic distinction, 
she continued, serves as the framework on which our immigration 
laws are scrutinized, and repeatedly has been recognized as 
significant not just under the Constitution, but also as a 
matter of statutory and treaty law.
    All this is happening because the President made an ill-
informed decision to close the Guantanamo Bay detention 
facility within a year. Soon after he made the mistake of 
signing that order, the President's own Defense Department made 
an independent assessment of the conditions at Guantanamo Bay 
and found no such evidence of alleged abuse. His own Attorney 
General, upon returning from his own trip to Guantanamo, said 
that the facilities there are good ones.
    In stark contrast to the fine facility at Guantanamo Bay is 
the nature of the detainees it houses. These detainees include 
al-Qaeda financial specialists, organizational experts, bomb 
makers and recruiters. As has been reported, camp officials 
have had to adapt to a detainee population that remains 
violent. There are up to 10 assaults a week on guards. Some 
throw urine or feces. When guards deliver food through a cell 
door, inmates try to pull their arms in and break them.
    Over a year ago Judge Royce Lamberth, the chief judge of 
the U.S. District Court for the District of Columbia, issued an 
unprecedented statement imploring guidance from Congress on 
these difficult subjects in the form of legislation that should 
come sooner rather than later, but the Democratic Majority has 
not acted. In the meantime, Republicans, myself included, have 
introduced the Enemy Combatant Detention Review Act, which 
would prevent Federal courts from ordering the government to 
release known terrorists into the United States. Republicans 
have also introduced the Keep Terrorists Out of America Act, 
which requires the Governor and State legislature to consent to 
any release or transfer of a detainee into their State. But 
neither of those bills nor any others on the subject have been 
brought up for a hearing.
    Mr. Chairman, terrorists are exploiting the current legal 
chaos as we speak, and Congress needs to act now.
    I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman, and I would recognize 
for 5 minutes the distinguished Ranking Member of the full 
Committee Mr. Smith of Texas--excuse me, the Chairman of the 
full Committee having waived statement at this time.
    Mr. Smith. Thank you, Mr. Chairman.
    We are here today because the President made a rash 
decision after only 1 day in office to close the Guantanamo Bay 
terrorist detention facility within 1 year.
    Just 2 weeks ago this Committee voted not to require the 
Administration to produce documents about its policy of giving 
Miranda warnings, including the right to remain silent, to 
terrorists detained in Afghanistan. The American people still 
deserve this information. Now President Obama wants to give 
known terrorists at least some of the constitutional rights of 
citizens on trial in the U.S. Once terrorists are given 
additional constitutional rights, such as the right to remain 
silent, of course they do just that. The result is no 
interrogations, no information and possibly more attacks.
    Just ask 9/11 mastermind Khalid Sheikh Mohammed. When he 
was captured in 2003, he was not cooperative. According to 
President Clinton's CIA Director George Tenet, he said, I'll 
talk to you guys after I get to New York and see my lawyer, but 
he wasn't read any Miranda rights, and his interrogation went 
forward whether he wanted it to or not. As a result, Tenet 
said, the information we obtained from him saved lives and 
helped defeat al-Qaeda. As Tenet wrote in his memoirs, I 
believe none of these successes would have happened if we had 
had to treat this terrorist like a white-collar criminal, read 
him Miranda rights and get him a lawyer, who surely would have 
insisted that his client simply shut up, end quote.
    A Wall Street Journal article pointed out that, quote, 
military prosecutors have said involuntary statements comprise 
the lion's share of their evidence against dozens of Guantanamo 
prisoners who could be tried, end quote.
    The Justice Department says there has been no change in 
overall policy, but several of the individuals responsible for 
conducting the interrogations of detainees told Congressman 
Mike Rogers that a change of policy is exactly what has 
    These reports that detainees are increasingly being told 
they have a right to remain silent is disturbing not only for 
its policy implications, but also because it appears to violate 
one of President Obama's own policy statements. In a 60 Minutes 
interview last March, President Obama said, quote, now, do 
these detainees deserve Miranda rights; do they deserve to be 
treated like a shoplifter down the block? Of course not, end 
    Further, as Thomas Joscelyn, one of today's witnesses, has 
pointed out, since only the most dangerous detainees remain at 
Guantanamo, there is a clear danger that those released will 
return to terrorism. According to Reuters News, one out of 
every seven terrorism suspects formerly held at the U.S. 
Detention site at Guantanamo Bay are confirmed or suspected of 
having returned to terrorism. The total of 74 has more than 
doubled since May 2007, end quote.
    The day after the President signed the order closing 
Guantanamo Bay, I introduced H.R. 630, the Enemy Combatant 
Detention Review Act. This legislation would prevent Federal 
courts from ordering the government to release known terrorists 
into the United States and protect sensitive intelligence on 
terrorists from being disclosed in court to prevent our foreign 
enemies from being able to evade detention and conceal future 
plots. Since then I, along with other Members, have also 
introduced H.R. 2294, the Keep Terrorists Out of America Act, 
which requires the President to notify Congress 60 days before 
transfer or release of a detainee occurs, and to certify that 
such a transfer or release will not result in the release of 
any detainee into the United States or otherwise pose a 
security risk to the United States.
    Mr. Chairman, that concludes my opening statement, and I 
will yield back.
    Mr. Nadler. I thank the gentleman.
    Mr. Conyers. Mr. Chairman.
    Mr. Nadler. The gentleman is recognized for what purpose?
    Mr. Conyers. I reluctantly seek to void my yielding of my 
    Mr. Nadler. The gentleman's waiver is waived.
    Mr. Conyers. Okay, and I thank you very much. I would like 
to yield----
    Mr. Nadler. And the gentleman is recognized for 5 minutes.
    Mr. Conyers. I would like to yield briefly to Bill 
Delahunt, who serves with great distinction on the Foreign 
Affairs Committee as well as this Committee.
    Mr. Delahunt. I thank the Chair, and I will be very brief.
    I think that the decision to close is the right decision, 
and I think for multiple reasons. I think when one surveys the 
opinion of the rest of the world, we can't quantify the loss in 
terms of collaboration with the United States in terms of 
dealing with terrorism, in dealing with terrorists. And there's 
a whole array of consequences that have been caused by the 
symbol of Guantanamo.
    Of course, one could visit Guantanamo today or even a year 
ago and see a sparkling facility. In my former career I 
happened to be a prosecutor. I was a State's attorney in 
greater Boston. I'm very familiar with prisons. They look great 
when they're all spiffed up.
    But that's not really what the issue is. And by the way, I 
know my friends on the other side are aware of the fact that we 
have facilities here in this country that I would submit are as 
secure as anything that Guantanamo can provide. They are called 
supermaxes. And maybe we ought to take a field trip and see 
what a supermax is really like. It would be good to maybe kick 
the tires, as the phrase goes.
    But I think the real issue here is do we really believe in 
due process, do we believe in the search for the truth, or do 
we want to take political advantage of heinous acts that have 
been perpetrated upon this country?
    You know, due process is a concept that is, in my judgment, 
fundamental to a viable democracy. And due process, when you 
strip all the legalese and the legal definitions, is nothing 
more than a search for the truth. That's what it's about. And I 
hear the term ``known terrorists.'' Well, who is going to tell 
us who the known terrorists are?
    Mr. Conyers. Would the gentleman allow me to reclaim----
    Mr. Delahunt. I yield. I yield to the gentleman for a 
    Mr. Conyers. I just----
    Mr. Delahunt. Because we--go ahead.
    Mr. Conyers. No, no. You got a minute. Go ahead. We're all 
colleagues, and we're having a very animated discussion in 
Judiciary, as is customary. I yield another minute.
    Mr. Delahunt. Well, I thank the Chairman. But ``known 
terrorists?'' Who makes the determination as to who ``known 
terrorists'' are? In the Subcommittee that I chair on Foreign 
Affairs, the Subcommittee on Oversight, we had several hearings 
on the so-called combatant status review tribunals, and it was 
the military that stood up and said they were a sham. So if 
that's what constitutes due process, and that's what 
constitutes a conclusion that we can reach as to an individual 
that he is a ``known terrorist,'' you know, that just doesn't 
cut muster if you're a believer in the concept of due process.
    No one is saying, well, let them go; no one is saying that, 
of course not. But we've had a process that I would suggest has 
failed the American people and has failed us in terms of 
dealing with terrorism. What happened to those 500 that left? I 
heard my friend from Texas talk about how 71 have returned to 
the battlefield. Boy, I see different statistics. They're not 
from Reuters, they're from, you know, surveys that were done by 
people who are intimately involved in this particular issue. 
But let's have a process that we can be sure of that we've made 
a valiant effort to search for the truth, and I dare say we're 
getting there.
    With that I yield back.
    Mr. Conyers. Well, I thank the gentleman, and I hope he's 
feeling better now that he's made this dispassionate 
description of why he thinks we're here today. And I tend to 
agree with him.
    I had not chosen to make opening remarks because I want to 
hear Adam Schiff, but when the Chairman Emeritus, my good 
friend Jim Sensenbrenner, said that the war against terrorists 
in the court was lost and cost 3,000 American lives, I had to 
take some time to rise to defend the former President of the 
United States George Bush. I don't think he conducted such a 
war, and I choose to defend him in that regard. He didn't do 
any such thing at all.
    And then my dear friend, the Ranking Member from Texas 
Lamar Smith, began his excellent comments, which I always 
listen to carefully, with the assertion that President Obama 
made a rash decision to close Guantanamo the first day that he 
was in office. But candidate Obama campaigned on this same 
issue for more than a year. And you may be interested to know 
that so did John McCain, who said he believed we should close 
Guantanamo. In Los Angeles he argued that the United States 
cannot go it alone in the world and must respect the views of 
valued allies. He went on to say our great power does not mean 
that we can do whatever we want whenever we want. And so on 
March 27, 2008, both candidates asserted that Guantanamo should 
be closed. And I thank you for your generous use of the time.
    Mr. Smith. Will the gentleman yield just for 1 minute?
    Mr. Conyers. Which Chairman?
    Mr. Smith. You, sir.
    Mr. Nadler. Without objection, the gentleman will be 
granted 1 additional minute.
    Mr. Conyers. Thank you very much, Mr. Chairman. And I yield 
to my friend the Ranking Member.
    Mr. Smith. Thank you, Mr. Chairman. And I appreciate your 
comments, and I thank you for listening to my opening 
statement, as I do yours.
    I just wanted to point out that even the President, after 
he made the decision, actually and subsequently said that he 
wished he had studied the issue a little bit more closely. I 
thought that was a candid and appreciated admission on his part 
that the issue is far more complex than even he thought, and as 
we all had discovered as well. I just wanted to make that 
    Mr. Conyers. I appreciate that very much, because I wish 
that the President would examine the issue of health care a 
little bit more carefully. I will be happy to agree with you on 
that point.
    Thank you, Mr. Chairman.
    Mr. Nadler. I thank the gentleman.
    In the interest of proceeding to our witnesses, and mindful 
of the Members' busy schedules, I would ask that other Members 
submit their statements for the record. Without objection, all 
Members will have 5 legislative days to submit opening 
statements for inclusion in the record.
    [The prepared statement of Mr. Johnson follows:]
 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties


    Mr. Nadler. Without objection, the Chair will be authorized 
to declare a recess of the hearing, which hopefully we'll do 
only if there are votes on the floor.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority in the 
Subcommittee, alternating between the Majority and the 
Minority, provided that the Member is present when his or her 
turn arrives. Members who are not present when their turn 
begins will be recognized after the other Members have had the 
opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late or is 
only able to be with us for a short time.
    I would now like to introduce our first witness. 
Representative Adam Schiff represents the 29th District of 
California and is a Member of this Committee. He also serves on 
the on Appropriations Committee and the Permanent Select 
Committee on Intelligence. Prior to serving in the House of 
Representatives, Congressman Schiff completed a 4-year term as 
State senator to California's 21st State senate district, 
chairing the senate Judiciary Committee, the senate Select 
Committee on Juvenile Justice, and the Joint Committee on the 
Arts. Before serving the California Legislature, Representative 
Schiff was with the U.S. Attorney's Office in Los Angeles for 6 
years, most notably prosecuting the first FBI agent ever to be 
indicted for espionage. He is a graduate of Stanford University 
and Harvard Law School.
    As you know, your written statement will be made part of 
the record in its entirety. I would ask that you now summarize 
your testimony in 5 minutes or less. To help you stay within 
that time, there is a timing light at your table. When 1 minute 
remains, the light will switch from green to yellow, and then 
red when the 5 minutes are up. And that will also apply to our 
next panel of witnesses, and I won't have to read that again.
    Mr. Schiff.


    Mr. Schiff. Mr. Chairman, I want to thank you for providing 
me with this opportunity to testify before the Subcommittee on 
this important issue.
    Since al-Qaeda and Taliban detainees first arrived at 
Guantanamo in 2002, Congress has failed to adopt a framework 
for detention and prosecution of unlawful combatants that could 
pass constitutional muster. During the years that immediately 
followed the establishment of Guantanamo, the then-Majority in 
Congress was not willing to confront this difficult issue and 
was comfortable with delegating these hard decisions to the 
executive branch and eventually to the courts. I want to 
commend the Chairman of the Subcommittee and the full Committee 
Chairman for their leadership in convening this hearing today.
    Earlier this year the President took the important step of 
indicating that the detention facility at Guantanamo Bay will 
be closed within a year. The poorly thought-out prison and the 
torture that took place there have called into question 
American adherence to the rule of law and discouraged our 
allies from cooperating with us.
    Apart from Guantanamo, however, a number of difficult 
questions still remain. Any post-Guantanamo system to detain 
unlawful combatants must meet our national security needs and 
also provide adequate due process to minimize the likelihood of 
error. Congress must be involved in the formulation of this new 
system, and changes should not be made solely by Executive 
    When a suspected terrorist is captured on a foreign 
battlefield, the accepted laws of war allow us to hold an 
unlawful or unprivileged combatant for the duration of the war 
and to prosecute them for crimes. Two determinations have to be 
made: Whether the person is an unlawful combatant, and whether 
the person has committed criminal offenses. The question 
confronting us now is who should make these decisions and how?
    The Bush administration established tribunals to determine 
whether someone at Guantanamo was an unlawful combatant and 
military commissions to handle any prosecutions. The current 
Administration has indicated their intention to continue using 
the military commissions after making a number of changes to 
the rules. Notwithstanding the changes announced by the 
Administration, I believe the commission system has proved so 
flawed and its due process so inadequate and discredited that 
in the case of the detainees at Guantanamo, it should be 
completely junked.
    Some have called for the creation of a new national 
security court to try detainees, and others have advocated 
moving all detainees into the Federal criminal courts. I 
propose an alternative that I believe better balances the 
national security needs of the country with our adherence to 
the rule of law. Earlier this year I introduced H.R. 1315, the 
Terrorist Detainees Procedures Act of 2009, legislation that 
would make use of the military courts-martial to prosecute 
detainees who are unlawful combatants.
    Military courts-martial have a long history of dispensing 
justice without compromising military operations. Cases are 
tried before military judges using a set of due process 
protections provided for under the Uniform Code of Military 
Justice, UCMJ. Almost any wartime offense could be tried in a 
military court-martial, and their use would allow us to show 
the world we're giving detainees the same procedural 
protections we give our own servicemembers who are brought up 
on court-martial charges. Military courts-martial are also well 
equipped to provide for the safeguarding of classified 
information and to deal with unavailable witnesses or 
involuntary statements in a manner that is fair and provides 
due process.
    The military courts-martial framework does not currently 
have a mechanism to make initial determinations of whether 
someone is an unlawful combatant, but this can be easily 
changed by Congress, and my legislation would make such a 
change. Specifically it would create a new status review 
procedure for all detainees currently held at Guantanamo to 
determine whether each individual was properly designated as an 
unlawful combatant.
    A panel of three military judges would be convened in the 
military courts-martial to conduct the reviews. This process, 
which replaces the previous combatant status review tribunals, 
would follow the same established pretrial investigative 
procedures used before charges are brought and referred to a 
court-martial under article 32 of UCMJ.
    The prior status review tribunal proceedings were so flawed 
that the threshold decision has to be remade to determine 
whether individuals are, in fact, unprivileged combatants. I 
believe this new review can take place and should take place 
before an independent factfinder, and therefore should occur 
separate and apart from the current review of cases by the 
    After the new status determination is made, my legislation 
would require any person determined to be an unlawful combatant 
to be either tried in court with a preference for the military 
courts-martial, transferred to a NATO-run detention facility or 
another country, or held in accordance with the law of armed 
conflict until the cessation of hostilities related to the 
initial detention or such time as they're no longer deemed a 
    Finally, my legislation will require those determined not 
to be unlawful combatants and not suspected of violating any 
law be transferred to the person's country of citizenship, 
place of capture or different country, as long as there are 
adequate assurances that they will not be the subject of 
torture; or be released.
    Mr. Chairman, I urge the Subcommittee to examine the 
courts-martial framework as an option that can both restore 
confidence in our detention regime while ensuring our national 
security needs are met. I thank you again, Mr. Chairman, and I 
yield back.
    Mr. Nadler. I thank you.
    [The prepared statement of Mr. Schiff follows:]
Prepared Statement of the Honorable Adam B. Schiff, a Representative in 
  Congress from the State of California, and Member, Committee on the 
    Mr. Chairman, I'd like to thank you for providing me with the 
opportunity to testify before the Subcommittee today on this important 
    Since al Qaeda and Taliban detainees first arrived at Guantanamo in 
2002, Congress has failed to adopt a framework for the detention and 
prosecution of unlawful combatants that could pass constitutional 
muster. For years the Majority in Congress was not interested in 
addressing, or even holding hearings on this issue, and was comfortable 
with delegating these difficult decisions to the executive branch and 
eventually the courts. I want to commend the Chairman for his 
leadership in convening this hearing today.
    Earlier this year, the President took an important step by 
indicating that the detention facility at Guantanamo Bay will be closed 
within a year. The poorly thought-out prison, and the torture that took 
place there, have called into question American adherence to the rule 
of law and discouraged our allies from cooperating with us.
    Apart from Guantanamo, however, a number of difficult questions 
still remain. Any post-Guantanamo system to detain unlawful combatants 
must meet our national security needs and also provide adequate due 
process to minimize the likelihood of error. Congress must be involved 
in the formulation of this new system, and changes should not be made 
solely by Executive Order.
    When a suspected terrorist is captured on a foreign battlefield, 
the accepted laws of war allow us to hold an unlawful (or unprivileged) 
combatant for the duration of the war and to prosecute them for crimes. 
Two determinations must then be made--whether the person is an unlawful 
combatant, and whether the person has committed criminal offenses. The 
question confronting us now is: Who should make these decisions, and 
    The Bush administration established tribunals to determine whether 
someone at Guantanamo was an unlawful combatant, and military 
commissions to handle any prosecutions. The current Administration has 
indicated their intention to continue using military commissions after 
making a number of changes to the rules. Notwithstanding the changes 
announced by the Administration, I believe the commissions system has 
proved so flawed, and its due process so inadequate and discredited, 
that it should be completely junked.
    Some have called for the creation of a new national security court 
to try detainees and others have advocated moving all detainees into 
the federal criminal courts. I have proposed what I believe is a far 
better solution. Earlier this year, I introduced H.R. 1315, the 
Terrorist Detainees Procedures Act of 2009--legislation that would make 
use of the military courts-martial to prosecute detainees who are 
unlawful combatants.
    Military courts-martial have a long history of dispensing justice 
without compromising military operations. Cases are tried before 
military judges using a set of due process protections provided for 
under the Uniform Code of Military Justice (UCMJ). Almost any wartime 
offense could be tried in a military court-martial, and their use would 
allow us to show the world that we are giving detainees the same 
procedural protections we give our own servicemembers. Military courts-
martial are also well-equipped to provide for the safeguarding of 
classified information and to deal with unavailable witnesses or 
involuntary statements in a manner that is fair and provides due 
    The military courts-martial framework does not currently have a 
mechanism to make initial determinations of whether someone is an 
unlawful combatant, but this can easily be changed by Congress--and my 
legislation would make such a change. Specifically, it would create a 
new status review procedure for all detainees currently held at 
Guantanamo to determine whether each individual is properly designated 
as an unlawful combatant.
    A panel of three military judges would be convened in the military 
courts-martial to conduct the reviews. This process, which replaces the 
previous Combatant Status Review Tribunals, would follow the same 
established pre-trial investigation procedures used before charges are 
referred to a court-martial under Article 32 of the UCMJ.
    The prior status review tribunal proceedings were so flawed that 
the threshold decision has to be remade to determine whether 
individuals are in fact unprivileged combatants. I believe this new 
review must be before an independent fact finder and therefore should 
occur separate and apart from the current review of case files by the 
    After the new status determination is made, my legislation would 
require any person determined to be an unlawful combatant to either be 
tried in court, with a preference for the courts-martial avenue; 
transferred to a NATO-run detention facility or another country; or 
held in accordance with the law of armed conflict until the cessation 
of hostilities directly related to the initial detention, or such time 
as they are no longer deemed to be a threat.
    Finally, my legislation would require that those determined not to 
be unlawful combatants and not suspected of violating any law, be 
transferred to the person's country of citizenship, place of capture, 
or a different country, as long as there are adequate assurances that 
they will not be subject to torture; or be released.
    Mr. Chairman, I urge the Subcommittee to examine the courts-martial 
framework as an option that can both restore confidence in our 
detention regime while ensuring our national security needs are met.

    Mr. Nadler. I yield to myself to ask you a couple of 
    Granting all the premises and the desirability of doing 
exactly what you said, couldn't lawful and for that matter 
unlawful combatants accused of crimes against laws of war be 
tried in a court-martial today? In other words, why do we need 
legislation for this?
    Mr. Schiff. Well, there are two issues. One is what is the 
mechanism to make the initial determination are they an 
unlawful combatant?
    Mr. Nadler. That's the second question.
    Mr. Schiff. Well, I view it as a threshold question, 
because unless you determine through lawful process they're an 
unprivileged combatant, they're not subject to prosecution, 
they're a POW. So we don't currently have a status review 
tribunal, and the legislation will be necessary to use the 
courts-martial for that process.
    Now, can these detainees be tried before military courts-
martial? I think the answer is yes.
    Mr. Nadler. So, in other words, the bill does deal with the 
threshold question.
    Mr. Schiff. The bill deals with the threshold question, but 
it also sets out a menu of options, including military courts-
martial; including, in particular cases, the Federal criminal 
courts; including transfer to a NATO detention facility. So the 
bill includes really the whole range of options.
    But yes, you're right. In terms of if you had an adequate 
status determination, can you bring someone before trial in a 
military courts-martial, I think the answer is yes.
    Mr. Nadler. Thank you.
    Mr. Sensenbrenner. Mr. Chairman.
    Mr. Nadler. The gentleman from Wisconsin is recognized.
    Mr. Sensenbrenner. Mr. Chairman, I have two questions. 
First of all, have you looked at the Geneva Convention to see 
whether that Convention would allow detainees and/or POWs to be 
tried before a military court under a court-martial act?
    Mr. Schiff. I believe it would.
    Mr. Sensenbrenner. How so?
    Mr. Schiff. Well, I believe there's nothing in the Geneva 
Convention that precludes us from trying an unlawful 
unprivileged combatant. They are subject to prosecution, 
they're not a POW. Nothing in the Geneva Convention that I'm 
aware of precludes their prosecution in any appropriate forum.
    Mr. Sensenbrenner. Now, my second question is do you 
disagree with the Obama administration that it does not want 
the Military Commissions Act repealed, but they want to amend 
it by simply tweaking some of the evidentiary rules that govern 
proceedings before military commissions?
    Mr. Schiff. Depending on how substantial the tweaks are, 
you could make military commissions identical with military 
courts-martial if you adopt the UCMJ, for example. Some of the 
rules that they are proposing move the military commissions in 
the direction of the due process you find in military courts-
martial. They don't go the distance. And because I think in the 
case of Guantanamo the military commission established by the 
Bush administration has been so discredited, I think that we're 
better off moving to a different venue.
    But to answer your question, depending on how far they're 
willing to go in terms of the rules, if they make the military 
commissions look like the military courts-martial, that would 
come close to satisfying the concerns that I have.
    Mr. Sensenbrenner. It seems to me from what you've just 
said is that you ought to give those who are defendants before 
whatever procedure is utilized more rights, such as the rights 
that are given soldiers who are being court-martialed, rather 
than what the Obama administration is proposing. Do I hear you 
correctly on that?
    Mr. Schiff. No, you don't, because what the Obama 
administration has said is that in some cases they are going to 
bring people before military commissions; in other cases they 
are going to bring people before Federal district courts. In 
the cases where they bring people before Federal district 
courts, that would be a much greater level of due process than 
what I am proposing in the military courts-martial.
    Mr. Sensenbrenner. But the Bush administration had the same 
choice of whether to bring a detainee before a military 
commission or before a Federal district court, haven't they?
    Mr. Schiff. Did the Bush administration have that choice?
    Mr. Sensenbrenner. Yes.
    Mr. Schiff. They did have that choice. And what they chose 
to do with that choice is largely bring people before military 
commissions that were so flawed that none of the convictions 
were upheld. Few could actually get through the process. And I 
don't think any successfully were prosecuted by the military 
commission. So you would have to look at what the Bush 
administration did as a pretty abject failure in terms of 
bringing these people to justice.
    Mr. Sensenbrenner. Well, I thank the gentleman for 
recognizing me. I'm not sure that what my distinguished 
colleague is proposing would be any more successful. And I 
yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    We'll now turn--I thank the gentleman for his testimony. 
The gentleman is excused with our thanks.
    We will now turn to the second panel. In the interest of 
time, I will introduce the witnesses while they are taking 
their seats. Lieutenant Colonel Darrel Vandeveld, and I hope I 
got that pronunciation correct.
    Lieutenant Colonel Vandeveld. You did. Thank you.
    Mr. Nadler. Lieutenant Colonel Darrel Vandeveld is with the 
Judge Advocate General's Office of the U.S. Army Reserve and 
was with the Guantanamo Military Commission. He is a senior 
deputy attorney general for the Commonwealth of Pennsylvania, 
currently assigned to the Erie Regional Bureau of Consumer 
Protection. He received his B.A. in philosophy and his J.D. 
from the University of California. I won't read his long list 
of declarations except to note that he was awarded the Bronze 
Star and the Iraq Campaign Medal.
    Deborah Pearlstein is an associate research scholar in the 
Law and Public Affairs Program at the Woodrow Wilson School of 
Public and International Affairs at Princeton University. She 
received her J.D. from Harvard Law School, where she was the 
articles editor of the Harvard Law Review. Ms. Pearlstein 
clerked for Judge Michael Boudin of the U.S. Court of Appeals 
for the First Circuit, and for Justice John Paul Stevens. From 
2003 to 2006, Ms. Pearlstein served as the founding director of 
the Law and Security Program at Human Rights First, where she 
led the organization's efforts in research, litigation and 
advocacy surrounding U.S. detention and interrogation 
operations. She was recently appointed to the ABA's Advisory 
Committee on Law and National Security. In addition to her law 
degree, Ms. Pearlstein holds an A.B. from Cornell University.
    Thomas Joscelyn--and I hope I got that correct--Thomas 
Joscelyn is a senior fellow at the Foundation for Defense of 
Democracies, where he is also the executive director of the 
Center for Law and Counterterrorism. Most of his research and 
writing is focused on how al-Qaeda and its affiliates operate 
around the world. For the past 2 years, he has conducted a 
major study of the detainees held at Guantanamo. In 2006, Mr. 
Joscelyn was named one of the Claremont Institute's Lincoln 
Fellows. He holds a B.A. in economics from the University of 
    Denny LeBoeuf is the director of the ACLU's John Adams 
Project, assisting in the defense of the capitally charged 
Guantanamo detainees. She has been a capital defendant for over 
20 years, representing persons facing death at trial and in 
postconviction in State and Federal courts, and she teaches and 
consults with capital defense teams nationally. Ms. LeBoeuf was 
the founding director of the Capital Postconviction Project of 
Louisiana and is a member of the 2003 committee that formulated 
the ABA guidelines for the appointment and performance of 
defense counsel in death penalty cases. From 2006 to 2007, she 
was chair of the Orleans Parish Public Defenders Board, 
coordinating the reform and restoration of indigent defense in 
post-Katrina New Orleans. She holds a J.D. from Tulane 
University and a B.A. from Hunter College.
    I am pleased to welcome all of you. Each of your written 
statements will be made a part of the record in its entirety. I 
would ask that you now summarize your testimony in 5 minutes or 
    I already explained about the lights. I don't have to 
repeat that.
    And before we begin, it is customary for the Committee to 
swear in its witnesses. If you would please swear and raise 
your right hand to take the oath.
    [Witnesses sworn.]
    Mr. Nadler. Thank you.
    Let the record reflect that the witnesses answered in the 
    You may be seated.
    I will now start by recognizing for 5 minutes our first 
witness Lieutenant Colonel Vandeveld.


    Lieutenant Colonel Vandeveld. Thank you, Chairman Nadler, 
Ranking Member Sensenbrenner, and Members of the Subcommittee. 
I do want to thank you all for inviting me to testify today on 
the issues surrounding the military commission system, 
including what I consider to be the mistaken proposal to revise 
and revive the--what I view as the irretrievably flawed 
military commissions at Guantanamo Bay.
    Before I begin, I do want to mention very briefly that 
yesterday I watched the Senate Armed Services Committee 
Webcast, and I noticed that everybody seemed to be dressed in 
dark blue suits, including Senator Levin, who I met in Baghdad 
in 2006, and for a very brief, fleeting, shining moment, I 
thought I was going to witness a memorial service for the 
Military Commissions Act. After 5 seconds I realized that was 
not the case, and that the Committee took up its business in a 
very professional manner.
    In any event, Chairman Nadler did introduce me. I do want 
to mention, I have served in Iraq, I have served in 
Afghanistan, I have served in Africa, I have served in Bosnia, 
all since 2001. I'm a reservist. All told I have served 4\1/2\ 
years on Active Duty; since 9/11, 2 years--over 2 years in 
combat zones. But most importantly for purposes of this 
hearing, I did serve on Active Duty as a prosecutor in the 
Office of Military Commissions in Guantanamo Bay from May 2007 
through December 2008. I went to Guantanamo with this 
experience, this combat experience, this experience on Active 
Duty firmly embedded in mind, and I went there with a purpose. 
And my purpose was to prosecute as many detainees as I possibly 
could, prosecute them within the bounds of the law as 
aggressively as I could, and to exact the punishment, the most 
profound punishment that I could, even the death penalty if 
    And so I believed the President when I went there and 
thought I was prosecuting the worst of the worst. Obviously 
when I got there, I experienced a profound change of heart and 
mind when I realized through firsthand observation and through 
my own actions that what I was seeing at Guantanamo was not at 
all consistent with our core values of justice and due process 
of law.
    I want to offer a single, straightforward message. The 
military system, military commission system, really is beyond 
repair. There have been three trials in 7 years when you add 
the military tribunals. One of them was a politically enforced 
guilty plea, one involved a detainee who boycotted his trial, 
and the final one was probably the rebuke of a lifetime to the 
prosecutors at Guantanamo, the Hamdan case, which finally did 
come to trial and resulted in a sentence, an effective 
sentence, of 5 months. Hamdan has now been released. He's back 
in Yemen doing what, I don't know.
    From my own perspective, though, I was assigned to 
prosecute several cases. At one point I was responsible for 
one-third of all the prosecutions at Guantanamo. One in 
particular led to my change of heart and my decision to ask to 
be relieved from the commissions. Unlike what some may have 
been told, I didn't resign; I asked to be reassigned either 
back to Afghanistan or Iraq to finish out my term, because one 
of the tenets of being a soldier is that soldiers don't quit, 
and I was not going to quit.
    But I was prosecuting somebody called Mohammed Jawad, who 
remains in custody to this day. I was presented--I see I'm 
running out of time, so I'll be very brief--I was presented 
with what I thought was the entire evidence in the Jawad case. 
And as I searched through the evidence and the documents, it 
became clear to me, as it would to any experienced prosecutor, 
that the file was not complete. There were references to 
documents that didn't exist. There was a video recording of a 
confession that should have been in the file that was not.
    I searched for this evidence, and ultimately what I did 
find was evidence that Jawad had been mistreated not only at 
the Bagram Theater Internment Facility where he was hooded, 
slapped, shackled, pushed down a flight of stairs. While he was 
at Guantanamo, he was subjected to the so-called ``frequent 
flyer program'' where he was moved every 2\1/2\ hours for 14 
days, in violation of a direct order of the Commander of Joint 
Task Force Guantanamo at the time. And so it was a result of 
these realizations which came over time that turned me from 
what I would call a true believer into somebody who felt truly 
deceived by the commissions. And that is why I left, and that 
is why I am testifying today. Thank you.
    Mr. Conyers. Mr. Chairman I ask unanimous consent that the 
Colonel be given 2 additional minutes.
    Mr. Nadler. Without objection, the colonel will be given 2 
additional minutes to amplify his testimony.
    Lieutenant Colonel Vandeveld. Thank you very much. I 
appreciate that.
    I didn't come to this conclusion about Mr. Jawad lightly. 
In fact, I was assisted by a very able defense counsel named 
Major David Frakt from the U.S. Air Force. He's a Harvard law 
graduate. He's a professor at a law school in California. And 
it was really through his tutelage for somebody who was 
disinclined to believe his assertions and through his repeated 
requests for information that I began to uncover this 
mistreatment of Mr. Jawad.
    And in particular what I discovered was that the evidence 
against Mr. Jawad consisted principally of two confessions: one 
taken by the Afghans when he was apprehended in December 2002, 
and then another one which was taken from him shortly, within 
hours, by U.S. forces after they received custody of Mr. Jawad, 
for want of a better way to put it. In fact, what developed was 
that the first confession, the Afghans held a gun to Mr. 
Jawad's head and told him they would not only kill him, but 
they would track down and kill members of his family if he 
didn't confess.
    The video recording of the subsequent interrogation by the 
U.S. interrogators disappeared. I sent out a servicewide 
inquiry. It turned up to be--turned up nowhere. After I left 
the commissions, my request to be reassigned denied, the 
military judge in the case suppressed those two confessions as 
having been the product of torture. So today Mr. Jawad is in 
custody 6, 7 years after the fact with virtually no evidence 
against him. His only hope for release is the grant of a habeas 
petition which is pending before the Federal district court, 
and--and I'll conclude with that except by saying that if--I'm 
out of time.
    Mr. Nadler. Finish your statement.
    Lieutenant Colonel Vandeveld. I was going to say, I have 
children of my own, and Mr. Jawad was a juvenile at the time. I 
could not countenance in good conscience the treatment that Mr. 
Jawad suffered at the hands of my fellow servicemembers, and I 
was appalled. And I would ask that, if anything results from 
these hearings, that steps be taken to make sure that juveniles 
and the excesses that have occurred in the past never occur 
again. Thank you.
    Mr. Nadler. I thank the gentleman.
    [The prepared statement of Lieutenant Colonel Darrel 
Vandeveld follows:]
            Prepared Statement of Lt. Col. Darrell Vandeveld
    Chairman Nadler, Ranking Member Sensenbrenner, and Members of the 
Subcommittee, I want to thank you for inviting me to testify on the 
legal issues surrounding the military commissions system, including the 
mistaken proposals to revise and revive the irretrievably flawed 
military commissions at Guantanamo Bay.
    I am a Lieutenant Colonel in the US Army Reserve Judge Advocate 
General's Corps. Since the September 2001 attacks, I have served in 
Bosnia, Africa, Iraq and Afghanistan. I have been awarded the Bronze 
Star Medal, the Iraqi Campaign Medal, the Joint Service Commendation 
Medal, and two Joint Meritorious Unit Awards. In civilian life, I am a 
senior prosecutor for the Commonwealth of Pennsylvania, and since 
graduating from law school, I have tried well over one hundred criminal 
jury trials.\1\
    \1\ Obviously, the views I express are wholly my own, and should 
not be taken as representative of the Department of Defense, the 
Department of the Army, or, certainly, my civilian employer.
    Most importantly for the purposes of this hearing, I served on 
active duty as a prosecutor at the Office of Military Commissions in 
Guantanamo Bay, Cuba, from May 2007 to September 2008. I proudly went 
to Guantanamo to serve our country as a prosecutor charged with 
bringing to justice detainees who President George Bush had said were 
``the worst of the worst.'' But I eventually left Guantanamo after 
concluding that I could not ethically or legally prosecute the assigned 
case. I became the seventh military prosecutor at Guantanamo to resign 
because I could not ethically or legally prosecute the defendant within 
the military commission system at Guantanamo.
    I am here today to offer a single, straightforward message: the 
military commission system is broken beyond repair. Even good faith 
efforts at revision, such as the legislation recently passed by the 
Senate Armed Services Committee, leave in place provisions that are 
illegal and unconstitutional, undermine defendants' basic fair trial 
rights, create unacceptable risks of wrongful prosecution, place our 
men and women in uniform at risk of unfair prosecution by other nations 
abroad, harm the reputation of the United States, invite time consuming 
litigation before federal courts, and, most importantly, undermine the 
fundamental values of justice and liberty upon which this great country 
was founded. It is my firm belief that if the United States continues 
to prosecute terrorism suspects through military commissions, past will 
become prologue. Inevitably, we will find ourselves once again with a 
discredited system, with a series of unfavorable rulings by federal 
courts, and with few, if any, successful prosecutions.
    My concerns appear to have been vindicated by the Justice 
Department's Office of Legal Counsel. As the members of this committee 
are no doubt aware, the Wall Street Journal reported last week that the 
OLC has issued an opinion finding that detainees tried by military 
commissions can claim certain constitutional rights, including the 
Constitution's prohibition on the use of statements obtained through 
coercive interrogations. Not only does this opinion bind the Executive 
branch to uphold a higher standard of admissibility of evidence than 
that afforded by either the current military commission rules or the 
Senate Armed Services Committee's legislation, but it also raises the 
specter of eventual invalidation by the Supreme Court of any 
prosecution of a detainee now held at Guantanamo.
    At the very least, the OLC opinion should caution legislators that 
the Senate Armed Services Committee proposal, which permits the use of 
coerced evidence, is likely to spur protracted litigation and result in 
even more delay. And at this point, we cannot afford to delay justice 
any longer. Seven years of detention without charge is long enough. It 
is time for government to charge the individuals it is going to charge 
before regularly constituted Article III courts or military courts-
martial, and resettle or repatriate the others. Indefinite detention of 
those imprisoned at Guantanamo without charge is anathema both to U.S. 
constitutional values and to the rule of law.
    I was not always so skeptical about the capacity of military 
commissions to deliver justice. I entered my job at the Office of 
Military Commissions as a ``true believer.'' I had heard stories about 
abuse at Guantanamo, but I brushed them off as hyperbole. When one of 
the detainees I was prosecuting, a young Afghan named Mohammed Jawad, 
told the court that he was only 16 at the time of his arrest, and that 
he had been subject to horrible abuse, I accused him of exaggerating 
and ridiculed his story as ``idiotic.'' I did not believe that he was a 
juvenile, and I railed against Jawad's military defense attorney, whom 
I suspected of being a terrorist sympathizer.
    The case against Jawad seemed uncomplicated. He stood accused of 
carrying out a hand-grenade attack on two U.S. Special Forces soldiers 
and their Afghan interpreter in December 2002, under instructions from 
a domestic insurgent group. Jawad had confessed to his role in the 
attack on a videotape recorded by U.S. personnel. To me, the case 
appeared to be as simple as the street crimes I had prosecuted by the 
dozens in civilian life, and seemed likely to produce a quick, clean 
conviction, and an unmarred early victory for the prosecution, 
vindicating the concept of the Guantanamo Military Commissions.
    As I delved deeper into Jawad's case file, however, I soon 
discovered a number of disturbing anomalies. And when I attempted to 
bring these anomalies to the attention of my supervisors, they were 
harshly dismissive of my concerns and actually, on some unspoken level, 
began to question my loyalty, even though my combat experience exceeded 
both theirs combined. I began to realize that the problems with Jawad's 
case were symptomatic of the military commissions regime as a whole. 
Indeed, if any case was likely to be free of such anomalies, it should 
have been that of Mr. Jawad, whose alleged crime was as straightforward 
as any on the prosecutor's docket. Instead, gathering the evidence 
against Mr. Jawad was like looking into Pandora's box: I uncovered a 
confession obtained through torture, two suicide attempts by the 
accused, abusive interrogations, the withholding of exculpatory 
evidence from the defense, judicial incompetence, and ugly attempts to 
cover up the failures of an irretrievably broken system.
    Evidence from U.S. Army criminal investigators showed that Jawad 
had been hooded, slapped repeatedly across the face and then thrown 
down at least one flight of stairs while in U.S. custody in 
Afghanistan. Detainee records show that once at Guantanamo, he was 
subjected to a sleep deprivation regime, known as the ``frequent flier 
program,'' during which he was moved to different cells 112 times over 
a 14-day period--an average of once every 2\1/2\ hours, and that he had 
tried to commit suicide by banging his head repeatedly against a wall. 
Evidence from a bone scan showed that he was, in fact, a juvenile when 
he was initially taken into U.S. custody. Field reports, and 
examinations by US medical personnel in the hours after Jawad had been 
apprehended, indicated that he had been recruited by terrorists who 
drugged him and lied to him, and that he probably hadn't committed the 
crime for which he was being charged. In fact, the military had 
obtained confessions from at least two other individuals for the same 
    In this way, I came to realize that Mr. Jawad had probably been 
telling the truth to the court from the very beginning. I implored my 
supervisors to allow Mr. Jawad to reach a plea agreement, in hopes that 
he would soon be released and returned to Afghanistan, but they not 
only rebuffed my requests, they refused even to listen to my 
explanation of my rationale for the agreement. I then made the 
enormously painful decision to ask to be reassigned from the 
Commissions, and personally petitioned the Army's top lawyer, to return 
to Iraq or Afghanistan to serve the remainder of my obligation. I 
simply could not in good conscience continue to work for an ad hoc, 
hastily-created apparatus--as opposed to the military itself--whose 
evident resort to expediency and ethical compromise were so contrary to 
my own and to those the Army has enshrined and preached since I 
enlisted so many years ago.
    The military commissions cannot be fixed, because their very 
creation--and the only reason to prefer military commissions over 
federal criminal courts for the Guantanamo detainees--can now be 
clearly seen as an artifice, a contrivance, to try to obtain 
prosecutions based on evidence that would not be admissible in any 
civilian or military prosecution anywhere in our nation. The problems 
manifest themselves in at least three ways, each of which I witnessed 
during my time at Guantanamo and which would remain problematic under 
the present proposal. They are, first, the rules of admissibility of 
evidence, including the relaxation of restrictions on the admissibility 
of evidence obtained through coercion and of hearsay; second, the 
gathering and handling of evidence, including legal and institutional 
restrictions on the disclosure of sensitive or classified evidence to 
the defense; and third, institutional deficiencies, including the 
insufficient experience and qualifications of both judges and counsel, 
and the inadequate provision of resources to the defense. Each of these 
shortcomings, I believe, will prove persistent even in the face of the 
most ardent, well-meaning legislative repackaging. I will address each 
in turn.
                       admissibility of evidence
    The rules of admissibility of evidence established by the Military 
Commissions Act were deeply flawed, and the Senate Armed Services 
Committee legislation would continue most of these flaws. In 
particular, I am deeply troubled to learn that the new legislation 
would continue to allow into evidence statements obtained through 
coercion. The impetus for this rule is obvious. The sad reality is that 
virtually every detainee--Mohammed Jawad is a salient example--has been 
subjected to torture and abuse repeatedly. Many of them are mentally 
ill as a result, some profoundly so.
    One reason coerced confessions are prohibited is moral repugnance; 
the other is practical experience, as they are unreliable. For some of 
the prisoners, such as some of the High Value Detainees, coerced 
statements may be corroborated by evidence that would be admissible. 
For others, only an unreliable coerced statement provides a tenuous 
theory of prosecution. Such cases should rightfully give any prosecutor 
pause. Disallowing evidence obtained through coercion would result in 
the evisceration of many of the cases that might otherwise, on the most 
tenuous of theories, have been prosecuted. Instead of recognizing this 
sad reality and resettling or repatriating those prisoners against whom 
the government has insufficient and tainted evidence, the present 
legislation, in effect, opts to continue the charade. Thus, in place of 
the ban on the use of coerced statements mandated by the Due Process 
Clause of the Constitution, the present legislation disallows only 
statements obtained through torture or cruel, inhuman or degrading 
    These changes will only exacerbate the practical impossibility of 
achieving justice at Guantanamo. The ban on the use of involuntary 
statements or confessions as evidence against an accused is a 
fundamental principle of the American criminal justice system. The 
Uniformed Code of Military Justice bans as ``involuntary'' statements 
obtained ``through the use of coercion, unlawful influence, or unlawful 
inducement.'' That is the law that applies in every court-martial--
absolutely no coerced evidence may be admitted. In contrast, it is 
unclear what, precisely, constitutes cruel, inhuman or degrading 
treatment under U.S. law. Indeed, the definition of cruel, inhuman, or 
degrading treatment has never been litigated before U.S. courts, and 
has, in the recent past, been the subject of discredited 
interpretations by Executive Branch attorneys.\2\
    \2\ In 2005, for example, President Bush's Office of Legal Counsel 
concluded that CIA ``enhanced interrogation techniques,'' including 
waterboarding, walling, dousing with water down to 41 F, stress 
positions, wall standing, cramped confinement, nudity, restrictions of 
caloric intake down to 1,000 kcal/day, sleep deprivation for up to 180 
hours, shackling, clothing in adult diapers, slapping and other 
techniques involving ``physical interaction with the detainee'' did not 
constitute cruel and inhuman or degrading treatment inconsistent with 
U.S. treaty obligations under Article 16 of the UN Convention Against 
    I am convinced that all prosecutions based on coerced evidence will 
ultimately be overturned by the courts. Coerced evidence is banned from 
every courtroom in America. It is inconceivable that our courts will 
find that there somehow is an exception from the ancient protection 
against prosecutions based on forced confessions.
    I was also disappointed to learn that the Senate Armed Services 
Committee legislation would continue the military commissions' practice 
of allowing hearsay into evidence. President Obama has argued that such 
an expansive admissibility standard ``would be consistent with 
international standards, such as those employed in international 
criminal tribunals.'' Unfortunately, the President's statement is 
misleading at best. Although international tribunals in the former 
Yugoslavia, Rwanda, Sierra Leone, and elsewhere do admit hearsay 
evidence, they differ fundamentally from military commissions in two 
significant ways. First, international tribunals use judges with 
experience in criminal law and procedure who are qualified to consider 
hearsay and determine its value. By contrast, the military commissions 
employ lay jurors who, once exposed to hearsay, lack the legal 
expertise to determine its probative value and discount it where 
appropriate. Second, judges in international tribunals issue detailed 
opinions in which they analyze each piece of evidence and provide an 
explanation of any corroborating testimony. Unlike the lay jurors in 
the military commissions, then, the professional judges at 
international tribunals must justify, in explicit terms, any reliance 
on hearsay.
    These rules of evidence represent significant departures from 
typical federal criminal court trials, courts-martial proceedings, and 
proceedings before international tribunals. As such, they will 
ultimately found to be unconstitutional and also will very likely be 
found to fail to comply with Common Article 3 of the Geneva 
Conventions, which require trial by a ``regularly constituted court 
affording all the judicial guarantees which are recognized as 
indispensable by civilized peoples.'' Language from Hamdan indicates 
that the Supreme Court might find these provisions problematic. In a 
portion of his concurring opinion endorsed by the majority,\3\ Justice 
Kennedy noted specific deficiencies in the commissions' rules of 
evidence, which, he argued, ``could permit admission of multiple 
hearsay and other forms of evidence generally prohibited on grounds of 
unreliability,'' including ``unsworn written statements,'' and 
``coerced declarations.'' \4\
    \3\ Hamdan v. Rumsfeld, 548 U.S. 557, 634 (2006).
    \4\ Id. at 652-53 (Kennedy, J., concurring).
                   gathering and handling of evidence
    The military commissions suffer from enormous problems surrounding 
the gathering and handling of evidence. The ``case files'' compiled the 
commissions' investigators and prosecutors are nothing like the 
investigation and case files assembled by military or civilian police 
agencies and prosecution offices, which typically follow a standardized 
format, include initial reports of investigation, subsequent reports 
compiled by investigators, and the like. But for the military 
commissions, there is no central repository for case files, no method 
for cataloguing and storing physical evidence, nor any other system for 
assembling a potential case into a readily intelligible format that is 
the sine qua non of a successful prosecution.
    While no experienced prosecutor, much less one who had performed 
his or her duties in the fog of war, would expect that potential war 
crimes would be presented, at least initially, in ``tidy little 
packages,'' at the time I inherited the Jawad case, Mr. Jawad had been 
in U.S. custody for approximately five years. It seemed reasonable to 
expect at the very least that after such a lengthy period of time, all 
available evidence would have been collected, catalogued, systemized, 
and evaluated thoroughly--particularly since the suspect had been 
imprisoned throughout the entire time the case should have been 
undergoing preparation.
    The obvious reason behind the shoddy preparation of evidence 
against Mr. Jawad is that it was not gathered in anticipation of any 
semblance of a ``real'' trial. With the government setting an extremely 
low evidentiary bar for continued detention without charge, with the 
focus on extracting information through coercive interrogations rather 
than on prosecution, and with the understanding that any trials will 
forego fundamental due process protections, there is little incentive 
for investigators to engage in the type of careful, systematic 
gathering of evidence that one would find in a typical civilian trial. 
In the case of Mr. Jawad, these incentives proved manifestly perverse; 
they allowed for the prolonged detention and abusive treatment of a 
juvenile who is very likely innocent of any wrongdoing.
    It took enormous amounts of time and effort for me to gather the 
evidence in Jawad's case, which was scattered in various locations 
throughout the military bureaucracy. Certain crucial documents had been 
tossed into a locker at Guantanamo and promptly forgotten. Crucially, 
none of it had been disclosed to the defense. Despite my best efforts, 
I was never able to locate some key pieces of evidence, such as the 
videotape of Jawad's initial confession to U.S. forces--which, 
incidentally, the commission has ruled was obtained through torture.
    Another persistent problem with the military commissions is the 
excessive restrictions on the disclosure of classified or sensitive 
evidence to defense counsel. Over-classification and protective orders 
can make it almost impossible for defense attorneys to formulate a 
viable case. Defense counsel are no less professional than their 
counterparts in the prosecution, and there is no reason that the 
military commission rules should deny them access to this information, 
once granted the appropriate security clearances. They can and should 
be trusted not to share such information with their clients as the law 
requires. As it stands, names of potential defense witnesses are 
routinely redacted from discovery materials, and protective orders 
hinder the defense's ability to ascertain such witness's identities 
through its own investigation.
    Over-broad protective orders impair information sharing among 
defense team members and create unnecessary delay, and over-
classification makes it impossible to pursue any investigation based on 
information from the client, including such simple pieces of 
information as the names and addresses of family members. Beyond such 
legally-mandated restrictions, institutional shortcomings also inhibit 
the discovery process. The chaotic state of the evidence and the 
absence of any systematic, reliable method of preserving and 
cataloguing evidence make it nigh impossible for prosecutors to comply 
with the discovery obligations mandated by their rules of professional 
conduct, even in a case as seemingly uncomplicated as Mr. Jawad's.
                       institutional deficiencies
    The military commissions suffer from numerous institutional 
deficiencies, which undermine the pursuit of justice and have created a 
kind of ``circus'' atmosphere at GTMO. First, the military judges who 
preside over the military commissions will not always possess the 
requisite experience in handling high-profile cases. They have spent 
much of their professional lives processing the various low-level and 
low-ranking servicemembers, in proceedings where defendants typically 
treat judges with an enormous degree of deference. These judges have 
scant experience in actually controlling courtrooms or the detainees. 
The detainees, on the other hand, are not in the slightest intimidated 
by the military judges. They view them as lackeys of an illegitimate 
    Still, the judges at Guantanamo have displayed a remarkable 
independence that has clearly confounded the architects of the 
commissions system, who evidently believed that both the military 
judges and the commissions panel members would serve as little more 
than an ``amen chorus,'' witlessly endorsing every pronouncement, 
however thin, false, or ill-conceived, by the prosecution.\5\
    \5\ These judges--Col. (Ret.) Ralph Kohlmann, despite his earlier 
published misgivings about the tribunals (see Kohlmann, R., Forum 
Shoppers Beware: the Mismatch between the Military Tribunal Option and 
United States Security Strategy, concluding, ``even a good military 
tribunal is a bad idea.'' [Paper written for the Naval War College, 1 
March 2002, available at http://www.uniset.ca/misc/kohlmann.html.]), 
COL (Ret.) Peter Brownback, CAPT (Ret.) Keith Allred, and COL Stephen 
Henley, the Chief of the Trial Judiciary at Guantanamo and for the US 
Army--distinguished themselves by their very independence, rejecting 
prosecution arguments regarding jurisdiction (rulings overturned by the 
politically-constituted Court of Military Commission Review, in a 
decision, United States v. Khadr, that even the proponents of the 
commissions recognize would not survive scrutiny in a regularly-
constituted court and have hence sought to amend the MCA of 2006 to 
address this inevitable outcome; in COL Henley's case, he ignored what 
must have been the condemnation of his colleagues to hold, as described 
above, that Jawad's confessions had been obtained through torture. 
Judge Allred also adopted the only plausible definition of what 
constitutes a ``war crime,'' incorporated this traditional definition 
into his instructions to the panel in United States v. Hamdan, with the 
result that the panel acquitted Hamdan of the principal charge against 
him, conspiracy to commit violations of the law of war. The panel also 
delivered the prosecution the rebuke of a lifetime when, after the 
prosecutor asked for a thirty-year sentence, they adjudged an effective 
sentence of approximately five months.
    The habeas rulings alone show the unspeakable travesty--the shame--
of holding so many of these innocent prisoners for so long, without 
charge, without access to lawyers, or even without access to the very 
``evidence'' sought to justify their prolonged imprisonment.
    A second, critical institutional deficiency is the inadequate 
provision of resources to the defense. I was pleased to see that the 
Senate Armed Services Committee report references the recent Memorandum 
for the Attorney General and General Counsel of the Department of 
Defense from the Office of the Chief of Defense Counsel at the 
Commissions, which calls for the provision of more resources to defense 
counsel, ending the practice of giving the prosecution input on defense 
resources, and ensuring that at least one ``learned'' defense counsel 
is assigned to all capital cases. Such reforms represent the bare 
minimum required for these trials to meet ABA standards on this issue, 
and should be adopted. But these changes cannot be simply recommended, 
they must be mandatory.
    Before concluding, I would request that the members of this 
subcommittee engage in the kind of role reversal that senior military 
officers routinely consider. Imagine that U.S. soldiers captured on the 
battlefield were, today, being subjected to the type of trial 
proceedings that we plan set up through these military commissions. 
Imagine that our service members had been tortured or abused, and that 
the commissions hearing their cases allowed into evidence statements 
obtained through coercion. Imagine that defense counsel were thoroughly 
under resourced and prohibited even from viewing information critical 
to their cases, and that exculpatory evidence was hidden. Imagine that 
the evidence against our soldiers was so weak, and had been gathered 
and compiled in such a shoddy and disorganized manner, that the 
commissions allowed hearsay into evidence--to be analyzed not by 
professional judges but by lay jurors--just to ``make sure'' that any 
and all prosecutions were successful. How would our government react to 
such trials? I imagine the uproar would be close to deafening.
    I am convinced that even the well-intentioned changes made to the 
military commissions by the Senate Armed Services Committee legislation 
will create a real risk that, in the future, American men and women in 
uniform will be subject to a farcical trial regime of this nature. By 
declining to uphold the fair trial rights of the terrorism suspects in 
our custody, we place our own soldiers at risk.
    The answer to this conundrum is simple and time honored. We do not 
need military commissions. They are broken and beyond repair. We do not 
need indefinite detention, and we do not need a new system of 
``national security courts.'' Instead, we should try those whose guilt 
we can prove while observing ``the judicial guarantees which are 
recognized as indispensable by civilized peoples''--in other words, 
using those long-standing rules of due process required by Article III 
courts and military courts-martial--and resettle or repatriate those 
whom we cannot. That is the only solution that is consistent with 
American values and American law.

    Mr. Nadler. Ms. Pearlstein is recognized for 5 minutes.

                         PRINCETON, NJ

    Ms. Pearlstein. Thank you. Subcommittee Chairman Nadler, 
Ranking Member Sensenbrenner, Members of the Subcommittee, 
thank you for the opportunity to testify on this important 
    I, like countless others in the civilian and military legal 
and security communities, have argued that the military 
commission as created by the Bush administration and codified 
by Congress in the Military Commissions Act of 2006 were a 
failure both as a matter of policy and law. I strongly hold 
that view today. Yet while I continue to doubt that the use of 
a new military commission system going forward is a wise or 
necessary course of policy, and I explain why I believe that to 
be the case in greater detail in my written statement, I've 
long said and continue to believe that it is possible to 
conduct military commission proceedings for certain crimes in a 
way that comports with U.S. and international law.
    Ensuring that any commission to be employed meets those 
standards is now a key responsibility of Congress. In this 
brief statement I would like to highlight some of the key 
changes that will be essential for Congress to pursue if it is 
to bring the Military Commissions Act of 2006 in line with 
prevailing U.S. and international law.
    Based on a preliminary review, I believe the Levin bill 
addresses some, but not all of these concerns. As my written 
testimony details, the MCA, the Military Commissions Act, 
leaves in place a structure and set of procedural rules that in 
key respects fall short of existing U.S. and international law. 
President Obama's announcement signaling his intention to rely 
on commissions going forward recognized these deficits in part, 
and the changes the President has ordered, most importantly the 
absolute prohibition as evidence of statements that have been 
obtained from detainees using torture or cruel, inhuman and 
degrading interrogation methods, are a positive first step.
    The bill now circulating in the Senate authored by Senator 
Levin also includes some important positive modifications, as I 
understand the draft language. In particular it wisely removes 
language in the MCA that prohibited defendants from so much as 
mentioning the Geneva Conventions in commission proceedings. 
Whether or not the Geneva Conventions provide a plaintiff in a 
civil case a cause of action to get into Federal court, the 
Geneva Conventions are, at a minimum, available as a rule of 
decision in cases before the Federal courts. Such availability 
is mandated by the Constitution, declaring all treaties made to 
be part of the supreme law of the land and consistent with the 
Supreme Court's application of the Geneva Conventions in Hamdan 
v. Rumsfeld.
    The courts must and do have the authority to apply all 
applicable law in deciding cases or controversies properly 
before them. Nonetheless these changes do not suffice to bring 
the contemplated commissions fully in line with U.S. and 
international law. I would highlight in this brief moment two 
particular concerns here, although there are others.
    First, while the Levin bill appropriately excludes 
statements made under torture, it still fails to ensure that 
commission rules adequately reflect the degree of voluntariness 
required by the U.S. Constitution for evidence to be admissible 
in criminal court. U.S. criminal trials in civilian court as 
well as in courts-martial have long prohibited the admission of 
involuntary statements at trial. Such statements have been 
recognized as inherently unreliable, and use at trial has been 
understood to create perverse incentives for detaining 
authorities to apply coercion beyond that authorized by law. 
Involuntary statements are constitutionally inadmissible, and 
they have no place in trials under color of U.S. law.
    Second, although the Levin bill is not entirely clear in 
this respect, provisions authorizing the review of commission 
decisions by civilian courts must not circumscribe the 
jurisdiction of the Federal review courts to exclude either 
questions of fact or issues of law. Particularly given the 
article I status of the commissions, it is essential that 
article III judicial review, review by the independent Federal 
courts, be as thorough as possible. The review should extend to 
questions of fact, subject to respect by the court to the 
extent commission findings have the power to persuade. And the 
scope of legal review should include the Constitution, laws and 
treaties of the United States.
    While correction of these and other provisions I outline in 
my written statement would go some distance toward correcting 
the remaining legal failings of the commission system, they do 
not of themselves constitute an affirmative case for why 
prosecutions in the military commissions instead of in the 
article III courts is a wise course of action. On the contrary, 
I believe that case remains to be made.
    Neither do such changes in law suffice to justify renewed 
faith in a system that has, as we've just heard, proved to date 
to be far worse in practice than one might have imagined based 
only on its inadequate rules on paper. As the President himself 
noted in his recent speech at the National Archives, instead of 
serving as a tool to counter terrorism, Guantanamo became a 
symbol that helped al-Qaeda recruit terrorists to its cause. 
Indeed, the existence of Guantanamo likely created more 
terrorists around the world than it ever detained.
    The military commissions have understandably been tarred 
with the same brush. The burden is now on the United States to 
demonstrate that any commission proceedings going forward can 
and should be fairly viewed as more legitimate than those past. 
For these and other reasons set forth in my written testimony, 
I continue to believe that trial and article III courts must 
remain the rule for prosecuting violations to criminal law. The 
use of any new commission system should remain exceptional and 
strictly limited in scope and duration to the narrow purpose 
that it is intended to serve.
    As ever, I'm grateful for the Subcommittee's efforts and 
for the opportunity to share my views on these issues.
    Mr. Nadler. I thank the lady.
    [The prepared statement of Ms. Pearlstein follows:]
              Prepared Statement of Deborah N. Pearlstein


    Mr. Nadler. I now recognize Mr. Joscelyn for 5 minutes.


    Mr. Joscelyn. Thank you. I would like to thank the Members 
of the Subcommittee for inviting me here today as well.
    The role of military commissions is an important and timely 
topic for discussion, especially as President Obama's 
administration decides how it will handle future detainees' 
cases. So I am grateful for the opportunity to present my 
    The military commission system is just one of the options 
the Obama administration is currently considering for trying 
terrorist suspects. In my opinion, it will take some work to 
make the commissions function properly. As has been documented 
here by the witnesses and several members of the panel, only a 
few commissions have completed their work from beginning to 
end, and I would say those commissions have mixed results as 
    For example, Salim Hamdan, who swore bayat, the ultimate 
oath of loyalty, to Osama bin Laden, and who served the terror 
master as a bodyguard and driver, received only a minimal 
sentence, 5\1/2\ years, for his devotion to al-Qaeda. Hamdan 
was even granted time served. Common criminals in the U.S. 
frequently receive longer and less lenient sentences. Hamdan 
was subsequently transferred to Yemen, a country that is home 
to one of the strongest al-Qaeda affiliates in the world and 
has a poor track record when it comes to keeping tabs on known 
al-Qaeda terrorists.
    So the commissions have been far from perfect. This is not 
to suggest that there is a perfect system for trying terror 
suspects. There are flaws with each of the available options, 
including trials in Federal courts. The Federal courts have 
been uneven in their rulings. For example, the court's decision 
in Parhat v. Gates omitted key facts. Parhat is an ethic Uyghur 
from Western China. He was recently released to Bermuda. Parhat 
and his fellow Uyghurs held at Gitmo challenged their 
detention, and a court found that there was no basis for 
holding them. However, the court's decision was fatally flawed. 
The court ignored the fact that Parhat, as well as at least 
seven of his fellow Uyghurs, openly admitted that they were 
trained by a known al-Qaeda terrorist named Abdul Haq in a camp 
at Tora Bora, Afghanistan. The Obama administration's Treasury 
Department has subsequently designated Haq a senior al-Qaeda 
terrorist. Abdul Haq was not even mentioned in the Parhat 
decision. So the courts are far from perfect, too.
    I could go on with more examples of flawed court decisions. 
I'm sure we can document more flaws in the commission system as 
well. But all of this is of secondary importance, in my view. 
The two most important reasons we detain terrorists are to 
prevent them from committing additional terrorist acts, and to 
gain additional intelligence about the terror network which 
thrives in the shadows. However the U.S. Government decides to 
proceed with the detainees' cases, it must make sure to protect 
the latter function in particular.
    Intelligence is our primary weapon in this long war, and 
without it we could quickly find ourselves blind to our 
enemies' designs once again. All one has to do to understand 
the crucial value of this intelligence is look at the detainee 
population at Guantanamo. Admittedly it's somewhat of a mixed 
bag and always has been. Because the detainees at Guantanamo 
are most likely the candidates for trial by a military 
commission, I would like to take just a few minutes to 
summarize the detainee population.
    The most lethal terrorists held at Gitmo are the 16 so-
called, quote/unquote, high-value detainees. These terrorists 
are uniquely lethal and have been responsible for thousands of 
deaths around the world. Had they been left to their own 
devices, they would have surely murdered thousands more. To 
name just two of them, the ranks include Khalid Sheikh 
Mohammed, the chief planner of the September 11 attacks, 
otherwise known as KSM, and Ramzi Binalshibh, al-Qaeda's point 
man for the September 11 operation.
    In my view, there is no material dispute over the high-
value detainees' importance. From an intelligence perspective 
they not only had detailed knowledge about al-Qaeda's past 
attacks, but also extensive knowledge of al-Qaeda's ongoing 
operations at the time of their capture. We know that in the 
years following September 11, 2001, al-Qaeda plotted attacks 
across the planet, stretching from the continental U.S. to 
Southeast Asia. Numerous plots were disrupted because the so-
called high-value terrorists were captured and interrogated.
    Much of the history behind their interrogations remains to 
be told, and there is, of course, an ongoing controversy over 
the manner in which they were questioned, but we know for 
certain that the high-value detainees gave up vital details on 
al-Qaeda's global operations, including during interrogations 
and sessions in which they were subjected to the harshest 
treatment. The reason we know this is because even the new 
Director of National Intelligence, Dennis Blair, has written as 
    To give you a sense of urgency surrounding these 
interrogations, consider the circumstances that existed at the 
time of KSM's capture. KSM was captured in Pakistan on March 1, 
2003. At the time of his capture, two terrorists working for 
al-Qaeda and working for KSM were plotting in the New York area 
to plot attacks.
    This is just one example of the grave matters facing U.S. 
intelligence professionals at the time of KSM's capture. 
Similar examples could easily be provided for each of the other 
high-value detainees held at Guantanamo as well.
    And it is not just the high-value detainees that crucial 
intelligence undermines when they were initially detained. 
Detainees at Gitmo include safe-house operators, bombmakers, 
terrorist trainers and trainees, al-Qaeda recruiters, committed 
recruits who desire martyrdom, Osama bin Laden's bodyguards, 
experienced fighters, and numerous other operatives who served 
the terror network in a variety of other functions. These are 
just some of the types of other detainees held at Guantanamo 
beyond the 16 high-value detainees. There are good reasons to 
suspect that all of them knew important details about al-
Qaeda's operations at the time of their capture.
    We now have the luxury many years later to debate how 
terrorists should be tried for their crimes. I think there are 
many important debates and arguments to be put forth in that 
regard, but we must remember that they did not stop on 
September 11. America has avoided being struck again, but this 
does not mean that they have stopped trying, and their attacks 
continue around the globe. Whatever course we choose from here 
on out, intelligence must remain of paramount importance. Thank 
    Mr. Nadler. I thank the gentleman.
    [The prepared statement of Mr. Joscelyn follows:]
                 Prepared Statement of Thomas Joscelyn


    Mr. Nadler. I now recognize Ms. LeBoeuf for 5 minutes.


    Ms. LeBoeuf. Good morning, Chairman Nadler and Members of 
the Subcommittee. Thank you for inviting me to testify on 
behalf of the American Civil Liberties Union regarding the 
legal and moral implications of this misguided effort to revive 
the military commission.
    Congress should not reform the commission. We do not need 
another system of justice, new and inferior by its very 
novelty. By design and by definition, the trial of Guantanamo 
detainees before a military commission cannot accomplish any of 
the goals of a legitimate justice system. The stated purpose of 
some proponents of military commission trials is to provide a 
forum where convictions are more likely than in a Federal 
court, and to use evidence that would rightly be inadmissible 
in a Federal court. Most particularly, these proponents wish to 
use statements that were obtained by torture and mistreatment.
    Such trials will not be or look fair. They will not be or 
look competent. And they cannot produce reliable verdicts. 
Perhaps, worst of all, no judgments under the military 
commission will ever truly be final.
    As director of the ACLU's John Adams' Project, I have 
attended and observed nearly all of the capital pretrial 
proceedings in the 9/11 conspiracy case at Guantanamo Bay. I 
can say without hesitation that as bad as the military 
commissions appeared on paper, they are far worse in practice, 
and that I am not alone in that judgment. In 20 years of 
defending indigent capital crimes in the deep South, I have not 
seen the blatant unfairness, the wholesale result-oriented 
injustices that I have witnessed in these proceedings. Two 
areas in particular display this unfairness.
    Resources. Extreme disparity in resources between the 
government and defense are the norm in the commission. Military 
prosecutors have free access to all the resources of the 
Department of Justice, while military defense lawyers, many of 
whom are here today, have the assistance of civilian counsel 
only because the ACLU and the NACDL provide it. That includes 
routine requests that are dismissed or denied for ordinary 
resources. Almost no independent experts, investigators, or 
specialists have been granted in any of these cases. Far worse 
in the death penalty case, with no capital counsel provided and 
no attempt to comply with the ABA guidelines required by the 
Supreme Court in capital cases. Across the board, a total 
failure of the commission process in providing even a semblance 
of the tools needed for an adequate defense.
    Access to counsel is another area. Year-long delays in 
security clearances, denial of the request for secure phone 
calls between clients and their attorneys, forced hooding and 
sensory deprivation during transport to attorney-client visits 
which discourage such meetings, overclassification of the 
defendants' accounts of them, mistreatment, refusal to assure 
prompt correspondence and provide a privilege team for 
declassification all combine to create nearly insurmountable 
barriers between clients and their lawyers.
    Let me speak to the appearance of inadequacy at the 
commission proceedings. Despite repeated requests and the fact 
that 9/11 was the most investigated crime in the history of the 
United States, few investigative documents have been provided 
in the discovery to the defense, fortifying the perception that 
no real trial was ever contemplated.
    Not 1 day, not 1 hour has gone by without significant 
translation problems. The commission is unable or unwilling to 
provide even minimally adequate translations in capital cases 
to non-English-speaking defendants, some whom act as their own 
    An entire day was lost while the court and prosecutors 
debated with JTF-GTMO on how to order a cell extraction on one 
of the defendants who had been diagnosed as psychotic by 
Guantanamo doctors. Such cell extractions and the forced 
hoodings make it look as though mistreatment is still 
occurring, and the day lost to debate was a direct result of 
the denial of adequate opportunity for defense lawyers to 
communicate with their clients.
    At the end of the day, the military judge called the 
proceedings, quote, a learning experience. I thought, it 
shouldn't be a learning experience. We shouldn't be making this 
up as we go along. It is supposed to be a capital trial 
conducted by a country ruled by laws. These cases belong in 
article III courts. We have nothing to fear from our own 
    No matter how many cosmetic changes are made, the military 
commissions will always be a second-rate court system set up 
for illegitimate purposes. When verdicts and perhaps death 
sentences are rendered by such a court, they will be tainted 
forever. They may well be reversed by article III courts, and 
when that happens, it will not be the voices of the defendants 
or the defense lawyers decrying the cruel folly, it will be the 
voices of the families of 9/11, the citizens of this country 
and our allies around the world who want this process to end, 
as Congressman Delahunt said, ultimately with truth emerging 
from a fair trial. The military commissions cannot provide 
    Mr. Nadler. I thank you.
    [The prepared statement of Ms. LeBoeuf follows:]
             Prepared Statement of Denise ``Denny'' LeBoeuf


    Mr. Nadler. We begin the questioning by recognizing myself 
for 5 minutes.
    My first question--and please answer these questions 
briefly since I have a lot in 5 minutes.
    Lieutenant Colonel Vandeveld, you heard Mr. Joscelyn and 
some others say repeatedly ``known terrorists,'' and 
characterized a lot of the people at Guantanamo as terrorists. 
How do we know they are terrorists if they haven't been tried?
    Lieutenant Colonel Vandeveld. Mr. Chairman, there is no way 
to know that. When he testified, it reminded me of the term 
``documented gang members,'' which I heard often as a 
prosecutor. When I inquired further, documented gang members 
turned out to be nothing more than a police officer's entry 
into a computer system that somebody thought somebody was a 
gang member.
    Mr. Nadler. So there is no way to know that?
    Lieutenant Colonel Vandeveld. There is no way to know that 
without a trial.
    Mr. Nadler. Thank you.
    Ms. Pearlstein, in this morning--yesterday the Deputy 
Defense Department general counsel Jay Johnson testified in the 
Senate that if for some reason he is not convicted, that is, a 
terrorism suspect, for a lengthy prison system in the military 
tribunal, that as a matter of legal authority, ``I think it is 
our view that we would have the ability to detain that 
person.'' In other words, they are claiming the ability to 
detain someone indefinitely even if they are acquitted.
    If a detainee is found not guilty either through a military 
commission system or a conventional court or court-martial, can 
they still be detained? And, if so, on what basis? And if the 
answer is yes, why bother with the farce of a trial of any 
    Ms. Pearlstein. The short answer is it depends whether or 
not their detention is otherwise authorized under the 
authorization for the use of military force and laws of war. 
And those are questions that are currently being very actively 
litigated, and we can talk about what the courts have held so 
    I would say there are some circumstances in which I could 
imagine that to be the case, particularly with respect to 
individuals who were----
    Mr. Nadler. So you could imagine what to be the case?
    Ms. Pearlstein. The ongoing detention to be authorized 
under the AUMF and the law of war, particularly with respect to 
individuals who are involved in the ongoing conflict in 
Afghanistan, for example. But I think those circumstances are 
more limited than the Obama administration thinks they are.
    But the answer to your second question, why would we try 
them at all if we can continue to detain some of them, I think 
has two answers. One is we can't continue to detain all of 
them. I suspect there is a small subset of people who we could 
lawfully continue to detain.
    And the second answer to that is traditionally, if an armed 
conflict ends tomorrow and fortune smiles on us, we may want 
to--and some of these people have actually committed war 
crimes, murder of civilians, torture, et cetera. We want to 
hold them a lot longer than the duration of the war in 
Afghanistan. They should be sentenced to prison terms of 10, 
20, 30 years. So that is why.
    Now, I admit to you, it is deeply disturbing to hear the 
notion that there could be continued detention even with trial, 
but that is, in fact, I think, under certain limited 
circumstances, a correct statement of the law.
    Mr. Nadler. We will get back to that.
    Also, Ms. Pearlstein, yesterday and today the issue came up 
as to whether the detainees are afforded greater constitutional 
rights if military commission trials are held in the United 
States instead of at Guantanamo or elsewhere, as, for instance, 
Iraq or Afghanistan. Is there a difference in the rights 
provided to detainees and the constitutional rights depending 
on where a trial is held, where they are detained?
    Ms. Pearlstein. The statement that I heard earlier, which 
is that Guantanamo detainees, if the trials were held here, 
would be afforded substantially more due process protections 
than they would be afforded in Guantanamo, I think is 
incorrect. I think that view of the applicability of the 
Constitution does not survive the Boumediene decision in which 
Justice Kennedy and a majority of the Court recognized that 
constitutional rights extend to individuals, even individuals 
held extraterritorially, to the extent it would not be 
impracticable or anomalous to apply those rights.
    Mr. Nadler. So the physical location of an individual does 
not, except in a rare impossibility situation, affect their 
constitutional rights?
    Ms. Pearlstein. I think with respect to the trial rights 
that would apply for military commissions, it makes little 
difference whether those trials are held in Guantanamo or the 
    Mr. Nadler. Or Bagram? Or is that different?
    Ms. Pearlstein. I think the question was left open by the 
Supreme Court in Boumediene. But if is not impractical or 
anomalous to apply those trial rights, particularly including 
    Mr. Nadler. Then we have to----
    Ms. Pearlstein. Apply them.
    Mr. Nadler. Thank you.
    I yield such time as he may consume to the distinguished 
Chairman of the full Committee.
    Mr. Conyers. Just briefly. I wanted to inquire of Attorney 
Pearlstein that there might be cases--you suggest that no 
trials were appropriate, but they should be locked up for a 
much longer period than the war. I presume you mean the war in 
Afghanistan or Iraq. But under what basis?
    Ms. Pearlstein. I want to be clear in what I am actually 
contending. My view is if people can be tried either under 
ideally in the article III courts or, if lawfully constituted, 
military commissions, they should be tried, period.
    The authorization for the use of military force has been 
construed by the Supreme Court in--as informed by the laws of 
war to authorize the detention of people engaged in armed 
conflict in Afghanistan in limited terms. Now, it is unclear 
how much farther that decision by the Supreme Court, the Hamdi 
decision, which came down in 2004, extends. But the district 
courts so far in the Guantanamo litigation have broadly 
embraced a somewhat limited view that the Administration has 
advanced, more limited than what the Administration has 
advanced, that it is possible, given the ongoing conflict in 
Afghanistan, and even broader--although it remains to be seen--
that some of these people can lawfully be detained under the 
combined authority of the Authorization for the Use of Military 
Force passed in 2001 and the laws of war.
    Mr. Nadler. Reclaiming my time, and this will be the last 
question on that point, that is for someone who is fighting. Is 
there someone who is simply picked up or sold by some clan to 
us for bounty or whatever--someone who claims he wasn't 
fighting, wasn't a combatant, does there have to be some sort 
of due process to determine whether, in fact, this person just 
happened to be walking through the street?
    Ms. Pearlstein. Absolutely.
    Mr. Nadler. What is that?
    Ms. Pearlstein. To be clear, the authority that has been 
recognized is recognized only as pursuant to the procedural 
protections afforded----
    Mr. Nadler. And what proceeding is that?
    Ms. Pearlstein. Well, with respect to the Guantanamo 
detainees, they all now have a constitutional right to habeas 
corpus, to a review of their status.
    Mr. Nadler. So anyone who we claim the authority to detain 
under the AUMF has a right to habeas corpus and, therefore, to 
a determination of their status?
    Ms. Pearlstein. The Supreme Court has held that with 
respect to those held in Guantanamo. The case is now about 
whether habeas extends to those held, for example, at Bagram, 
Afghanistan. But at a minimum, those people are entitled to 
substantial process under the interpretation of the AUMF that 
the Supreme Court has already given and what the Geneva 
    Mr. Nadler. And have we given that process to people at 
Bagram or anyone else?
    Ms. Pearlstein. My view is that the process we have given 
to people at Bagram is insufficient under the prevailing 
    Mr. Nadler. Thank you.
    I now recognize the distinguished Chairman Emeritus of the 
Committee, the gentleman from Wisconsin, for 5 minutes.
    Mr. Sensenbrenner. Mr. Chairman, I thank the Chairman for 
yielding me this time.
    What we are hearing today is a continuation of the assault 
by the American political left on the entire institution of 
Guantanamo Bay and the people who have been sent to Guantanamo 
Bay. And apparently, from what I have been hearing, the 
witnesses that the Majority has brought before the Committee 
think that the Obama administration seems to have sold out the 
desire to close Guantanamo and disperse those who have been 
detained at Guantanamo to wherever.
    Let me say that I heard from Ms. Pearlstein that there 
wouldn't be any more rights given to people who were 
transferred from Guantanamo to elsewhere or were tried before 
some other type of a procedure. But that is in direct 
contradiction to the brief that Solicitor General Kagan filed 
with the Supreme Court.
    I guess the concern that I have is that there has been a 
track record of people who have been released from Guantanamo 
going back home and continuing their battled ways. Yesterday 
foxnews.com had a story, ``Former Gitmo Inmate Leading the 
Fight against the U.S. in Helmand,'' which is in Afghanistan. 
The man's name is Mullah Zakir, who is also known as Abdullah 
Ghulam Rasoul. And one defense official said that, explaining 
why Zakir was released from GTMO to Afghan custody and then in 
2008 into society, quote, ``We were under incredible pressure 
from the world to release detainees at GTMO. You just don't 
know what people are going to do. He was no worse than anyone 
else being held at Guantanamo Bay,'' the official said.
    So I think the fact that very few foreign countries are 
wanting to resettle these folks is an indication that they have 
complained about Guantanamo from a, quote, ``world 
perspective.'' But when the time comes for burden sharing and 
dealing with these folks and perhaps trying them, other 
countries seem to have dived under the table and said, ``No, 
that is your problem, Americans.''
    I just looked at what has happened to the Uyghurs who have 
been resettled in Bermuda. On June 17, the Royal Gazette, which 
is the newspaper in Bermuda, quoted the police commissioner as 
describing them as high risk. Now, what are we doing to 
countries that are friendly or territories that are friendly, 
since Bermuda is still a British colony?
    And I guess the question that I would like to ask, having 
said all of this, is directed to you, Mr. Joscelyn, is why does 
it make sense to release a person who has been described by 
American officials as members of terrorist organizations to 
another country when the position of the United States itself 
is that a person should not be allowed to travel to the United 
    Mr. Joscelyn. Well, with the Uyghurs in particular, we are 
asking about their--I have always said I do not consider those 
guys to be, quote/unquote, the worst of the worst. I do not 
consider them to be the most dangerous guys who were at 
Guantanamo. However, when you get into their files, and you get 
into the admissions that they made at their combatant status 
review tribunals and their administrative review board 
hearings, a sizable number of them admitted that they were 
trained by a senior al-Qaeda terrorist, as designated by the 
Obama administration, Abdul Haq.
    So when you ask why does it make sense to release these 
type of guys to our allies or free them to our allies and not 
tell the full story of who they are and not make sure that 
there is some sort of full accountability and full transparency 
on who these guys are, I would say it doesn't make sense.
    Just to double back to the Taliban commander, the search 
commander in Helmand Province that you mentioned, Congressman, 
Rasoul is a good example of a guy who downplayed his ties to 
the Taliban while in detention. He is the guy who said that he 
wasn't really a Taliban member or a fighter or anything of the 
sort. When he was released, and when he assumed his--and he is 
the Taliban's antisurge commander in Afghanistan, so he is 
tasked with fighting U.S. and British troops in Southern 
Afghanistan. When he basically announced that role, and when 
the Taliban announced that role, they also taunted us and said 
basically Rasoul all along was a confidante of Mullah Omar, the 
head of the Taliban. In fact, he was always a high-level 
Taliban leader.
    So this is the type of thing that happens with these 
detainees. A lot of times what you will hear are people saying 
the detainees don't deny, as if that means they are not 
terrorists or they are not a threat. Here's a good example of a 
guy who tried to downplay his ties to the Taliban, and, in 
fact, he was a Taliban leader all along.
    Mr. Sensenbrenner. And this was the guy that was released 
from GTMO to the Afghans because of, quote, world pressure, 
unquote, that was ginned up by people who disagree with the 
American policy in fighting terrorism. Am I right on that?
    Mr. Joscelyn. That's what the intelligence official in the 
Fox News piece said, yes. And just to add quickly, a lot of the 
pressure actually--and this is pretty interesting and probably 
not a topic to get into fully here today, but a lot of pressure 
sometimes comes from former detainees who themselves are 
actually al-Qaeda terrorists. And just recently an al-Qaeda 
terrorist who--you know, he was released above the objections 
by the Bush administration, above the objections of the CIA, 
DIA, FBI, and Department of Homeland Security. This guy's name 
is Moazzam Begg. He was orchestrating an al-Qaeda video game 
for the XBox 360 in which detainees at GTMO would shoot their 
way out of the facility and kill American soldiers, who they 
called, quote/unquote, just mercenaries.
    But this type of pressure a lot of times comes from 
corridors that are very unsavory and comes from, in fact, our 
enemy. I would just clarify that.
    Mr. Sensenbrenner. Point made. And I yield back the balance 
of my time.
    Ms. LeBoeuf. The characterization of Moazzam Begg is so far 
from the reality accepted by any--I mean, it boggles the mind.
    Mr. Sensenbrenner. Well, ma'am, I think you are willing to 
believe anything that appears in the press that these folks 
say. And I think what Mr. Joscelyn has said very clearly is 
that anybody who does that does that at the risk of the----
    Mr. Nadler. The gentleman will suspend. If the gentleman 
wants to comment, I will grant him a minute to comment.
    Mr. Sensenbrenner. No. I am done.
    Mr. Nadler. I will grant myself a minute to comment.
    Mr. Joscelyn makes unsupported allegations against people 
based on anonymous sources. I would point out that the United 
States Circuit Court of Appeals for the District of Columbia 
Circuit in 2008 said, with regard to the Uyghurs, or with 
regard to one of them at least, quote. ``It is undisputed that 
petitioner is not a member of al-Qaeda or the Taliban; that he 
has never participated in any hostile action against the United 
States or its allies,'' unquote. This was in the case of Parhat 
v. Gates, 532 F.3d 834, at page 836, a 2008 case.
    I would also just make one comment that I hope that Mr. 
Joscelyn may address himself to this or some others at some 
point in the further questioning. I am not going to ask the 
question now because it is not my time, but I want to make the 
comment that Mr. Joscelyn made a lot of statements about how we 
have got terrible people at al-Qaeda--terrible people at 
Guantanamo, which I assume no one disagrees with; that some of 
them are certainly terrible, maybe all, maybe not, some of them 
are certainly terrible; but didn't say a word about what we 
ought to do. And the question that I think this hearing was 
called to address is what should our--what should our--not 
policy. What should we do going forward? Should we have 
military tribunals? If we do, should the military tribunals 
have this set of procedures or that set of procedures? If we 
don't have military tribunals, what should substitute? And Mr. 
Joscelyn, aside from saying there is a lot of bad people there, 
which clearly there are, didn't say a word of any of this. And 
I would like to hear at some point what he thinks, given the 
fact that we need intelligence, and there ought to be people 
there, what we ought to do. We can't simply say we think they 
are bad people, somebody thinks they are bad people; therefore, 
lock them up forever without some sort of due process. That is 
not American.
    Mr. Sensenbrenner. Give Mr. Joscelyn a chance to answer 
your barrage.
    Mr. Nadler. By unanimous consent, I'd be happy to give him 
time to answer. It wasn't my time.
    Mr. Joscelyn. I think probably part of the reason for the 
issue just brought up is because I'm not a lawyer, so I'm not 
well versed in all legal aspects of all the legal wrangling. My 
perspective is always from intelligence first and defeating the 
enemy, and that is the perspective I come from.
    So what I tried to highlight in my testimony is that, from 
that perspective, from that of an intelligence analyst who 
studies these matters and spent thousands of hours studying the 
Guantanamo detainees, there are frequently facts left off the 
table in any of the venues that are being considered for trying 
suspects. And what I would say is that whatever process we move 
forward with--and I am not going to solve this answer for the 
U.S. Government; obviously, there are many Subcommittees and 
Committee hearings on this. There is a substantial political 
debate on how to handle all this. I'm not going to be able to 
wave a magic wand and give everybody a solution to this.
    Mr. Nadler. In other words, you have no suggestions.
    Mr. Joscelyn. No. I would say that--basically what my 
colleague Andy McCarthy has suggested at the Foundation for 
Defense of Democracies, which is a national security-style 
court where intelligence is protected, and there are clear 
rules and guidelines for whoever goes to that court is a 
reasonable guideline. But I say that as a non-lawyer.
    Ms. LeBoeuf. We don't need a suggestion of a system of 
courts if all you need to do is characterize people as known 
terrorists, if you want to say that somebody is the worst of 
the worst, if you want to say that somebody has been shown to 
be demonstrated.
    Mr. Nadler. Thank you.
    Next, I now recognize the distinguished Chairman of the 
Committee for 5 minutes.
    Mr. Conyers. Well, I think this is quite a revealing 
hearing. Mr. Joscelyn, you are not a lawyer by admission, but 
you are respectful of judicial proceedings and decisions, I 
    Mr. Joscelyn. Certainly.
    Mr. Conyers. And you do follow them in this area in which 
you rely on intelligence for quite a bit of your point of view. 
As a matter of fact, you may want to know that we have Members 
on the Judiciary Committee who are not lawyers who handle 
themselves quite well among a sea of lawyers. And in the 
Senate, the Judiciary Committee, the same thing applies.
    So you are not suggesting that your comments derive from 
the fact that maybe some of these folks up for trial fooled the 
courts, the Federal court system, are you?
    Mr. Joscelyn. I am suggesting that in certain instances you 
can point to facts that are left off the table, and I don't 
know why that is. I can't tell you what was going on in the 
courts' mind. I can just tell you that, as an analyst, I know 
when a high-level al-Qaeda terrorist is identified by the 
detainees as the guy who trained them, that is an important 
fact that should make it into the record. That's all.
    Mr. Conyers. It should be.
    Did you read the record?
    Mr. Joscelyn. I read as much as I could.
    Mr. Conyers. Okay. My congratulations. You may have--oh. Do 
you have access to classified documents?
    Mr. Joscelyn. No. And that is--you know, the bottom line 
there, too, is I have always admitted that there is a certain 
line where there is a certain amount of information I can't 
review as an outsider, but I would say, like the decision that 
I was just referencing, the information that I was getting at 
and talking about was not classified. It was available in the 
unclassified files.
    Mr. Conyers. Thank you.
    Then the citation that Chairman Nadler made about referring 
to a Federal appeals court, did you have some question or 
suspicion that they didn't quite get it right and understand 
the nature of the person who was before them?
    Mr. Joscelyn. Again, I think that basically there were 
certain facts that you can see in the unclassified record which 
I think are important facts and recognizes they are important 
facts by--you're talking about the Parhat decision?
    Mr. Conyers. You're referring--yeah.
    Mr. Joscelyn. And which have been recognized as important 
facts that didn't make it in the case. Keep in mind that the 
group that trained these guys at Tora Bora, you know, publishes 
its Jihadist videos on the Web, and you can download them and 
see what this organization is. So--and this is not--to me, from 
an intelligence perspective and an analysis perspective, there 
is really no dispute over what this group is or who some of 
these guys are. But again, I have said over and over--I am not 
saying that we are going to lock them away and throw away the 
key. I am not saying they are the worst of the worst. I'm just 
saying let's get the facts right. That's all.
    Mr. Conyers. Well, then that means that you question not 
only the courts, but also the government lawyers trying the 
case, because you can see into it that obviously some things 
were hidden from the process and the court that should have 
been brought out about how potentially dangerous this person 
was. Is that not correct?
    Mr. Joscelyn. You know, basically I can't tell you exactly 
why these facts didn't make it in the court's possession. I 
don't know what the prosecution put forth to the judge.
    Mr. Conyers. You have said that.
    Mr. Joscelyn. But the bottom line is, again, it's just all 
I'm trying to do is establish a basic factual----
    Mr. Conyers. Let me ask you about the two Supreme Court 
cases. Do you think that there were things that the Supreme 
Court didn't know about in these two cases that ruled against 
our military commission procedures? Were there instances there 
that made you come to some concerns that you are now expressing 
about other cases?
    Mr. Joscelyn. You know, sitting here today, I don't have 
any examples to offer you of anything that the Court must know, 
    Mr. Conyers. But do you feel that something may have been 
left out?
    Mr. Joscelyn. I don't feel one way or the other. I would 
have to review them in depth. It is an empirical question to 
me, not a----
    Mr. Conyers. You have a lot of talent. I would like to 
recommend law school to you at some future time, if you--
because you seem to be very interested in trying to ascertain 
the truth in court and in trials. And it seems like somebody is 
missing something in the cases you reviewed, either the 
government lawyers or the judge itself.
    I ask for 2 minutes more.
    Mr. Nadler. Without objection.
    Mr. Conyers. Now, this hearing--I am a lawyer, so I don't 
want to be confused by what information is coming toward me, 
but, look, you don't have any answers as to what we should do. 
But Attorney Pearlstein, whose testimony I was very eager to 
receive, she says there may be times when you have to just lock 
them up forever. I mean, forget--maybe we can justify it under 
the laws of war, or maybe there is something else, but people 
could be so dangerous that although there are no charges that 
can be brought, that they may have to be kept. And I would like 
to turn to our ACLU counsel to help me fathom what her two 
fellow witnesses are trying to impart to the Judiciary 
Subcommittee this morning.
    Ms. LeBoeuf. Thank you, Mr. Chairman.
    First of all, what keeps getting confused in this 
discussion is that should Congress continue down the road that 
it began in 2006 after the failure of an executive attempt to 
create military commissions by reforming the one that isn't 
good enough that was created in 2006, all to take care of a 
problem that will not occur in the future, this is not a 
prospective problem. We are not taking statements under torture 
anymore. We are not going to do that anymore. Trying to have 
cases where the trials are dependent upon evidence, some of 
which was obtained under torture or cruel and inhumane and 
degrading treatment, is a problem, and it's a problem that 
should not be solved by creating an entirely new set of 
judicial procedures which will have no--the problem of novelty 
and the problem of ultimate--the loss of finality that I talked 
about, and that will produce the kind of show trial that we see 
at Guantanamo.
    So the solution has to be one case at a time in Guantanamo 
for the retrospective analysis. Of course, neither the ACLU nor 
anyone who depends on Geneva's----
    Mr. Conyers. Mr. Chairman, I ask for a sufficient amount of 
time for the witness to make her statement. And then, in all 
fairness to Attorney Pearlstein, I mentioned her name, she 
certainly has got some comment.
    Mr. Nadler. Without objection, Ms. LeBoeuf, we will give 
you enough time to finish your answer, and Ms. Pearlstein to 
make a comment.
    Mr. Conyers. That's all. And I won't ask any further 
questions. But I----
    Mr. Nadler. Ms. LeBoeuf.
    Ms. LeBoeuf. The Administration agreed and the Geneva 
requires that a court that affords the judicial guarantees 
recognized as indispensable by civilized people, so that means 
no indefinite detention. That is off the table. It means no 
coerced statements. That should be off the table.
    Taking a look practically, one on one, at the cases that 
remain in Guantanamo where there are tainted pieces of evidence 
is, I believe, going to reduce down to a very small set the 
really problem cases, and we don't know until we have trials. 
That is what trials are for.
    The Parhat case that Mr. Joscelyn keeps referring to wasn't 
a trial, it was a habeas proceeding. The government came in and 
said, we don't need a trial; we agreed that there's not enough 
evidence to have kept those people. We should never have picked 
them up in the first place.
    So looking at these cases from the point of view of real-
world litigators who look at real-world courtrooms, as Colonel 
Vandeveld and I and the other lawyers in these military 
commissions can tell you, is that the cases--one by one we take 
a look at these cases. We will find a way to try them. That is 
what our trials do. We have Federal courts that try terrorist--
the terrorism cases have proceeded.
    Mr. Nadler. Ms. Pearlstein.
    Ms. Pearlstein. Thank you.
    I want to try to be very clear. I do not believe indefinite 
detention is lawful under any law. I do not believe that 
detention purely on the basis of some assessment of dangerous 
is lawful under any law. I do not believe that coercion, 
coerced testimony, torture, et cetera, are lawful under any 
    What I do believe is, for example, that if there is 
somebody at Guantanamo currently who was a commander of Taliban 
forces in battle against the United States in 2002, and I take 
it that it may be there is some small number of people who fit, 
for example, that description, that person is, in my view, a 
classic prisoner of war as that term is defined under the 
Geneva Conventions, as contemplated, I suspect, even by 
Congress in the Authorization for the Use of Military Force it 
passed in 2001. In my view, it is a reasonable and perhaps 
appropriate interpretation of those two bodies of law, the 
Authorization of the Use of Military Force together with the 
Geneva Convention, to recognize that that person's detention is 
permitted until the end of the conflict in Afghanistan, period. 
That is what I am suggesting.
    Mr. Nadler. Thank you.
    The gentleman from Arizona Mr. Franks is recognized for 5 
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Chairman, this Administration has made many risky 
decisions related to terrorism. I an completely convinced that 
they do not understand the fundamental mindset and philosophy 
and ideology that animates jihad. And I am afraid that a lot of 
the discussions that we have today will be revisited in the 
future, and I am afraid that jihad will certainly disabuse the 
Administration of some of their naivete in the future. I hope 
sincerely with my heart that my fears are unfounded and that I 
am totally wrong.
    However, the proposals covered in this hearing require a 
great deal of risk. They require us to make ourselves more 
vulnerable to terrorists, in my opinion. Binyam Mohammed was 
released by the Obama administration to England earlier this 
year. Mohammed was a would-be accomplice of the would-be dirty 
bomber and now convicted terrorist Jose Padilla. Mohammed 
planned to carry out mass murder attacks in American cities. As 
has been reported, Mohammed is an Ethiopian-born Jihadist. As 
terrorist researcher Thomas Joscelyn, the gentleman that I 
think has acquitted himself very well today, has documented, 
Mohammed joined al-Qaeda in Afghanistan and met personally with 
Osama bin Laden and other top al-Qaeda figures. He received 
extensive, sophisticated terrorist training, and in 2002, when 
he was finally apprehended in Pakistan, he was almost certainly 
en route to the United States to conduct attacks with Jose 
Padilla, who has been convicted since then of terrorist 
    Padilla is a notorious--Padilla is notorious as the alleged 
dirty bomber because he, along with lesser known Mohammed, 
studied the possibility of constructing and detonating a 
radiological bomb in an American city. And as Mr. Joscelyn 
recounts, Mohammed and Padilla, quote, ``explored a wide range 
of possible targets and modes of attack from striking U.S. 
subways to setting apartment buildings on fire using ordinary 
gas lines.''
    Just a short answer, Ms. Pearlstein, if you would. Do you 
dispute any of the factual assertions that I just quoted 
regarding Binyam Mohammed?
    Lieutenant Colonel Vandeveld. Actually, sir, may I address 
    Mr. Franks. No, sir. I asked her the question.
    Lieutenant Colonel Vandeveld. All right. I just want to 
point out, I prosecuted Binyam Mohammed, and I know the facts a 
little bit better than most people.
    Mr. Franks. All right. Do you dispute any of the facts, 
    Lieutenant Colonel Vandeveld. I do. Definitely.
    Mr. Franks. Which ones?
    Lieutenant Colonel Vandeveld. First of all, the dirty bomb 
plot was nothing more than downloading a satirical article 
written by Barbara Ehrenreich and others from a Web site and 
was dropped in the subsequent refiling of the charges. Mohammed 
was a drug addict. He is one of life's losers. If you have ever 
had any connection with him at all, you would understand he 
wouldn't pose a threat to anybody. The idea that he was going 
to America, as you put it, almost certainly to conduct 
terrorist activities is not borne out by the facts. I wish I 
could get into those because--but I can't because of national 
security considerations. But the idea that Mohammed is one of 
the worst of the worst or that he----
    Mr. Franks. I didn't say that.
    Lieutenant Colonel Vandeveld. Yeah. Well, I know.
    Mr. Franks. You haven't disputed any of the facts here at 
all, to make the point, but let me continue.
    Ayman Saeed Abdullah Batarfi was cleared for release by the 
Justice Department, but he has not yet been released because a 
country willing to accept him has not yet been found. And, 
according to other reports, U.S. Justice Department has decided 
to release yet another detainee from Guantanamo, a Yemeni named 
Ayman Saeed Abdullah Batarfi. Based on Batarfi's own freely 
given testimony, he was certainly not an innocent swept up in 
the post-9/11 chaos of Afghanistan, as his lawyers claim. There 
are at least three aspects of Batarfi's testimony given before 
his administrative review board hearings at GTMO that are 
    First, Batarfi admitted that he was an employee of al Wafa, 
a charity that has been designated a terrorist organization. Al 
Wafa is discussed in brief in the 9/11 Commission Report as an 
al-Qaeda front.
    Second, Batarfi admitted that he met with a Malaysian 
microbiologist and authorized the purchase of medical equipment 
for this individual. This microbiologist is most certainly 
Yazid Sufaat. Batarfi denies knowing if Sufaat was working on 
anthrax when they met in 2001.
    Third, Batarfi admitted that he met with bin Laden in the 
Tora Bora mountains in 2001, and he admitted that he had 
purchased cyanide, but claims it was for dental fillings. He 
admitted that he stayed at various al-Qaeda and Taliban 
guesthouses, but says he didn't realize that they were 
facilities associated with Mr. bin Laden at the time.
    Mr. Joscelyn, would you like to expand on any potential 
challenges you think the release of some of these terrorists 
represents to America?
    Mr. Joscelyn. Well, you know, I think that part of the 
problem here is that when you hear people talk about these 
guys, you hear--a lot of times you hear just the most selective 
version of facts that fits their case as if their defense 
lawyers are presenting it. And what I try to do in my research 
is just try and flesh out the whole picture and say, here's 
what these guys have admitted to even in the tribunal sessions 
or administrative review board hearings. Here's what the 
government says it knows about them from either those sources 
or other sources. And the bottom line is each one of these 
cases that you have outlined and each one of the cases, I 
think, at Guantanamo, as the Obama administration is rightfully 
doing, it requires an individual judgment.
    So I think that basically there has to be judgment made on 
each one of these cases, how it is handled, what measure of due 
process is given to the detainees, and how to proceed going 
forward. So I don't want to provide a catch-all for all the 
detainees. I think that you don't want to say they are all the 
worst of the worst. You don't want to say that they are all 
going to be detained indefinitely. I am not here saying that. 
What I am saying is that basically, like the terrorists you 
just outlined that have been cleared for release, there are 
troubling facts that count against them, and there are 
substantial facts, and that has to weigh into any decisions 
made about them.
    Mr. Franks. Mr. Chairman, it is a difficult situation that 
we face, but the challenge is here, the real problem here, is 
that the assertion that the Bush administration got it all 
wrong. And yet probably, when it is all said and done, the 
Obama administration will have to face some facts that, because 
of the challenging circumstances of this, that we'll have 
something like GTMO or some other detention facility with some 
type of military tribunal; or the terrorists will be very happy 
that we have changed it over and given them additional rights.
    With that, I yield back.
    Mr. Nadler. Thank you. And since that comment was, I think, 
directed at me, let me just make one comment here, and that is 
that all these facts about these individual cases which may or 
may not be true, I don't know, are interesting, but not, in my 
opinion, terribly relevant to this hearing.
    We all admit that there are guilty people at Guantanamo. 
Some people assert there are innocent people at Guantanamo 
also. The question before--and not just Guantanamo, in 
detention elsewhere. The question of the hearing is what 
procedure a military tribunal, a court-martial, an article III 
court, a commission--how should we handle the situation, not 
whether there are bad people. We know that.
    Mr. Delahunt. Would the Chair yield for a question?
    Mr. Nadler. Well, I now recognize the gentleman for 5 
    Mr. Delahunt. Okay. Well, I wanted to get extra time. I 
thought I would sneak it in.
    You know, I hear we are willing to accept; other countries 
are willing to accept. I've had conversations in my capacity as 
Chair of the Oversight Subcommittee on Foreign Affairs, and 
there are countries that are willing to accept. They are 
waiting for the United States to accept. That, I would suggest, 
is logical.
    Mr. Joscelyn, you are an advisor to Mr. Gingrich, correct?
    Mr. Joscelyn. I wouldn't say I am an adviser to Mr. 
Gingrich. I sent him one memo. It was an advisory memo.
    Mr. Delahunt. But you indicated in a story that he relied 
on your research.
    Mr. Joscelyn. Right.
    Mr. Delahunt. On your analysis. So maybe an advisor, but 
you send memos to him. Would you agree with his statement that 
the Uyghurs should all be sent back to China?
    Mr. Joscelyn. You know, that is a tricky topic. That is 
what Pakistan did earlier this year.
    Mr. Delahunt. No. I am asking you the question.
    Mr. Joscelyn. I understand.
    Mr. Delahunt. Do you agree with the gentleman that you have 
given advice to that it is not an American problem; the Uyghurs 
should be sent back to China?
    Mr. Joscelyn. Not necessarily.
    Mr. Delahunt. You disagree with that.
    Mr. Joscelyn. I never argued that. I never argued that they 
should all be sent back to China.
    Mr. Delahunt. I am glad to hear that, because clearly since 
you are a student of China and the Uyghur Autonomous Province, 
you know what is happening there now.
    Mr. Joscelyn. Sure. Could I have one comment?
    Mr. Delahunt. No. I ask the questions, you give the 
answers, because we do have limited time.
    You know, I would make the distinction between facts as you 
recite them and assertions. But I really want to be clear, 
because I think it is important in terms of your testimony, 
that your analysis is based upon unclassified information. Did 
you at any time have access to classified information as it 
relates to the Parhat case, to the Uyghurs in general?
    Mr. Joscelyn. No.
    Mr. Delahunt. You did not?
    Mr. Joscelyn. No.
    Mr. Delahunt. Okay. You are aware that the Court did.
    Mr. Joscelyn. Sure.
    Mr. Delahunt. You are aware that the Bush administration 
    Mr. Joscelyn. Sure.
    Mr. Delahunt. You are aware that the Obama administration 
    Mr. Joscelyn. I would assume so.
    Mr. Delahunt. You are aware that the Department of Defense 
    Mr. Joscelyn. Sure.
    Mr. Delahunt. And they cleared them for release back in 
2003; is that a fair statement?
    Mr. Joscelyn. I don't know that they cleared all of them 
for release in 2003. I think there were different 
circumstances. I am not sure.
    Mr. Delahunt. You are unsure of that fact. Okay.
    Do you know how the Uyghurs were apprehended?
    Mr. Joscelyn. The basic outline of the details I can recall 
offhand, yes.
    Mr. Delahunt. Okay. Tell me.
    Mr. Joscelyn. Was they left Tora Bora, Afghanistan, during 
the bombing campaign there in 2001 and crossed the border into 
Pakistan. Or I believe they were sold over to Pakistani 
authorities for bounty. Yes.
    Mr. Delahunt. They were sold.
    Mr. Joscelyn. I can't 100 percent verify that.
    Mr. Delahunt. You can't verify that. But do you know the 
amount was that they were sold for?
    Mr. Joscelyn. I do not.
    Mr. Delahunt. If I said $5,000, would you disagree with me?
    Mr. Joscelyn. No.
    Mr. Delahunt. So, per Uyghur, it was $5,000. Could you tell 
me how the Pakistanis made an assessment as to whether they 
were terrorists or not?
    Mr. Joscelyn. How the Pakistanis themselves made the 
    Mr. Delahunt. Right.
    Mr. Joscelyn. No.
    Mr. Delahunt. You can't do that.
    Mr. Joscelyn. I don't have any sources in the Pakistani 
Government that can tell me that, No.
    Mr. Delahunt. Neither do I.
    In terms of--you're aware, of course, that the Uyghurs are 
a persecuted minority.
    Mr. Joscelyn. Absolutely.
    Mr. Delahunt. And that recently the Chinese Government has 
suggested that a woman by the name of Rebiya Kadeer is 
responsible for fomenting the unrest that is presently 
occurring in Northwest China.
    Mr. Joscelyn. I recognize that China has made that 
accusation, yes.
    Mr. Delahunt. Are you aware that Ms. Kadeer was nominated 
for the Nobel Peace Prize on three different occasions?
    Mr. Joscelyn. I was not aware of that.
    Mr. Delahunt. And they are suggesting that she is 
responsible for the unrest.
    Are you familiar with the Department of State records, 
human rights report on the treatment of the Uyghurs by the 
    Mr. Joscelyn. I am--I remember reading some. I don't 
remember if I read the whole report.
    Mr. Delahunt. What was the conclusion?
    Mr. Joscelyn. Certainly China has abused human rights 
routinely in Western China. Absolutely.
    Mr. Delahunt. So we can agree on that.
    Mr. Joscelyn. Absolutely.
    Mr. Delahunt. Are you aware of the fact that Communist 
Chinese intelligence agents were invited by the United States 
Government during the Bush administration to Guantanamo to 
interview the 22 Uyghurs that were there?
    Mr. Joscelyn. I have seen that report. And I don't know the 
exact details surrounding it, but I have seen that report.
    Mr. Delahunt. You don't know about that?
    Mr. Joscelyn. I don't know exactly what happened or 
transpired during that session. No. I have seen the report.
    Mr. Delahunt. Could I have an additional minute?
    Mr. Nadler. The problem is that there are 3\1/2\ minutes 
left on the vote on the floor.
    Mr. Delahunt. I will wait for the second round then.
    Mr. Nadler. Thank you.
    The gentleman's time has expired. The Committee will stand 
in recess until the votes on the floor. There is a 15-minute 
and two 5-minute votes. There are 3\1/2\ minutes left. The 
Committee will stand in recess. I ask the Members to return as 
soon as the last vote is completed. Thank you. The Committee 
stands in recess.
    Mr. Nadler. The Committee will come to order again. I thank 
the witnesses for their indulgence of our recess for the votes 
on the floor. Hopefully we will be able to conclude the hearing 
before there are more votes on the floor.
    And with that, I will recognize the gentleman from Texas 
Mr. Gohmert for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    I do appreciate the witnesses. I know everybody's 
motivation here is out of an intention to preserve America that 
we hold dear. Civil rights are so critical, and I appreciate 
the protection of those. We have had some problems with that in 
recent years. But when it comes to those who are part of a 
group who have declared war unto us or against us, it changes 
    And I keep hearing people talk about--including some of you 
all--referring to this American tradition of due process. And 
my friend from Massachusetts had indicated you can bring these 
guys into supermax prisons here in the United States, and we 
wouldn't have to worry about them escaping. And I think he is 
right about that, but there are other problems, too.
    These guys are good at recruiting terrorists, and when you 
have a potential virus that can kill the body, you shouldn't 
voluntarily bring that virus into the body so you can determine 
whether or not it may be lethal. That is not the way to do it. 
If you can examine it outside the body, that is the way to go.
    So when we--and I heard witnesses say we have had 
commissions with mixed results. Well, Obama stopped commissions 
that were ongoing in the middle of the trial. You talk about 
tough on somebody. Talk to those families of victims who were 
hoping they would get closure, and this President stopped those 
in the middle of them. And I would readily admit, I believe 
that when President Bush created his own commissions without 
coming through Congress that it was--as the Supreme Court later 
said, that was not proper constitutionally. So it came through 
this body, and we had the commission set up, and that was a 
more appropriate way to do it.
    And then, as Chief Justice Roberts pointed out in his 
dissent in the Boumediene case, the Supreme Court didn't take 
yes for an answer. And then they didn't take yes for the 
answer, and that is why Justice Scalia said you are trying to 
create criminal justice requirements for due process on the 
battlefield. This is going to cost American lives. I couldn't 
believe Scalia had the nerve to say that. I like the guy so 
    But he is right, you can't require our people in harm's way 
to go out and have people shooting at them and think, uh-uh, I 
had better go get the forensic kit and do DNA testing and look 
for hair, fingerprints, look for casings. You are fighting a 
    The American traditions are due process when people have 
declared war against us. And let me just read you. This is 
Khalid Sheikh Mohammed. You want to talk about interpreters, he 
didn't need one. This guy is smart. He is well versed in the 
Qur'an, and I would hope that you have read this. He filed it 
on behalf of himself and the four other defendants.
    But some of his quotes were: ``In God's book, he ordered us 
to fight you everywhere we find you, even if you were inside 
the holiest of the holy cities, the mosque of Mecca, the holy 
city of Mecca, and even during sacred months. In God's book, 
verse 9, al Tawba: Then fight and slay the pagans wherever you 
find them, and seize them and besiege them and lie in wait for 
them in each and every ambush.''
    He goes on. He says: ``So our religion is a religion of 
fear and terror to the enemies of God: the Jews, the 
Christians, pagans. With God willing, we are terrorists to the 
bone. So many thanks to God.''
    He said: ``We will make all of our materials available to 
defend and deter and egress you and the filthy Jews from our 
    He says also: ``We fight you and destroy you and terrorize 
you. The jihad in God's cause is a great duty in our religion. 
We have news for you. The news is you will be greatly defeated 
in Afghanistan and Iraq, and that America will fall 
politically, militarily, and economically. Your end is very 
near. And your fall will be just as the fall of the towers on 
the blessed 9/11 day. We will leave this imprisonment with our 
noses raised high in dignity.''
    These are people who have declared war on us. That is a 
different standard. And I know a little about military justice, 
too, having been 4 years involved in it. I know a little about 
article 32, general court-martial. I have appealed capital 
murder convictions. I have been a prosecutor, a judge, a chief 
justice. So I know a little bit about this stuff.
    But when you are talking about people who have declared war 
against our way of life, that American tradition of due process 
is different. And 5 minutes is just not much time to do 
anything, but let me read you, going back to the very start of 
the American tradition of due process.
    George Washington, when he was fighting the Revolution for 
liberty, he said: ``As the season is now fast approaching when 
every man must expect to be drawn into the field of action, it 
is highly necessary that we should be preparing our minds as 
well as everything necessary for it. It is a noble cause we are 
engaged in. It is the cause of virtue and mankind. Every simple 
advantage encumbered to us and our posterity depends on the 
vigor of our exertions. But it might not be amiss for the 
troops to know that if any man in action should presume to 
skulk, hide himself, or retreat from the enemy without the 
orders of his commanding officer, he will be instantly shot 
down as an example of cowardice.''
    Even if he were going to the latrine or something, they 
weren't going to have a trial, they were going to shoot them, 
because liberty is at risk. And when your liberty is at risk, 
we have the constitutional duty to provide for the common 
defense. And I am afraid history will judge us forcefully 
someday as it has all great civilizations that fail by saying 
they lost the stomach to defend their liberty.
    Thank you, Mr. Chairman.
    Mr. Nadler. Does the gentleman have a question for any of 
the witnesses? I will indulge him with the extra time.
    Mr. Gohmert. I do appreciate that.
    I would like to ask, do any of you feel that the trials of 
Nuremburg also violated the American tradition?
    Lieutenant General Vandeveld. No. But they were obviously 
distinct, because they were created by treaty among the Allied 
Powers. They were presided over by judges who were trained in 
the law. And even though they had allowed for hearsay, the 
opinions had to be carefully explained. And they were in a much 
better position to evaluate the use of hearsay than would, say, 
a commissions panel.
    The other thing I wanted to say----
    Mr. Gohmert. So were they not part of the American 
    Lieutenant Colonel Vandeveld. They were part of the 
international tradition. But the other thing I did want to 
    Mr. Gohmert. You realize how many things were violated, you 
all talked about are violated with what's being done now, 
right? You obviously are familiar with the trials at Nuremburg.
    Lieutenant Colonel Vandeveld. Yes, of course.
    Mr. Gohmert. And you understand they didn't provide a lot 
of the rights that you're saying are absolutely part of our 
American tradition of due process, right?
    Ms. LeBoeuf. They did not accept coerced statements. They 
did provide counsel and all resources necessary for defense 
counsel. They did--and curiously----
    Mr. Gohmert. Are you aware of all the things they didn't 
provide though?
    Ms. LeBoeuf. The system was not--there certainly are not--
no--to my memory, there is nothing that was not provided in 
Nuremberg that I think would now be characterized or then be 
characterized as indispensably--to civilized nations as an 
indispensable--as a part of the justice system. And the comment 
about Nuremberg that is relevant to the military commissions 
trial is the one made by General Hartman, Thomas Hartman, the 
discredited former legal counsel to the convening authority, 
who said to the prosecutors: These military commissions at 
Guantanamo will not be like Nuremberg. There will be no 
    You cannot set up a system to guarantee conviction.
    Mr. Nadler. Thank you.
    The time of the gentleman has expired.
    The gentleman from Georgia is recognized for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    I am troubled by the fact that the Members or the witnesses 
who were selected by the--on this side of the aisle are all 
legal practitioners, if you will. They are lawyers, and they 
have a deep and healthy respect for the rule of law. And I know 
that you do also, Mr. Joscelyn. But I really think that it 
would have been great had the other side selected someone who 
was a lawyer who could support the status quo or defend any 
allegations that these military commissions have not--have, in 
fact, been very--they have been good. So we don't have that 
    I do appreciate you for being here, Mr. Joscelyn. And you 
are an intelligence analyst; is that correct?
    Mr. Joscelyn. I would say intelligence and counterterrorism 
analyst. But, yes.
    Mr. Johnson. Okay. And so I respect your views, even though 
I will say that you did make allegations against kind of like a 
broad brushstroke against everybody being held in detention in 
Guantanamo, and with no evidence other than what you say 
admissions that the detainees have made. And I don't think, as 
most lawyers would agree, that these kind of statements that 
are rendered under duress and are rendered after being tortured 
are reliable. I don't think they are. They are inherently 
    And so what I do want to ask, though, is, Ms. LeBoeuf, you 
are opposed to the military commission scheme that is already 
set out. And you are also, Lieutenant Colonel, is that correct?
    Lieutenant Colonel Vandeveld. Yes, sir.
    Mr. Johnson. And what would be the alternative that you 
would recommend?
    Lieutenant Colonel Vandeveld. My alternative, if I may go 
first and I will be as brief as possible, is to urge those who 
can be tried in article III courts--and I understand the 
interagency task force established by President Obama's 
Executive Order is still conducting reviews. The reviews were 
supposed to have been completed in May; now the deadline has 
been extended to July. I heard general counsel Jay Johnson 
testify yesterday that they may not even be done by the end of 
the year. And so if they can be identified for trial in article 
III courts, they should. But many of those who are culpable or 
may be culpable at Guantanamo are foot soldiers, people who 
were captured in the process of planting roadside bombs and the 
like. They can be court-martialed.
    Mr. Johnson. And none of these people have been able to 
give a--they have been so low-level, the overwhelming majority 
of them, that they were not able to even produce a location for 
Osama bin Laden after being repeatedly tortured.
    Lieutenant Colonel Vandeveld. That's correct. Those who 
were his bodyguards dispersed after the bombing began in 
October 2001. And obviously we received no actionable 
intelligence from them at the time.
    Mr. Johnson. Okay. I'm going to stop you right there. I 
wish I had more time, but I want to get back to Ms. LeBoeuf.
    Ms. LeBoeuf. Thank you, Congressman.
    I think that the answer is trials in Federal courts, in 
article III courts, as the Obama administration said in its 
order in the first week, are the way to go, and that the 
practical--or rather the hypothetical problems that are raised 
again and again are simply not--they dissipate when you take a 
look at these cases, when litigating lawyers get in a room and 
take a look at the evidence. And the statement by the 9/11 
conspirators, alleged conspirators, read by the Congressman 
from Texas, you know, led me to think that's not a coerced 
statement, that's a voluntary statement. It seems to me that a 
prosecutor wouldn't have a real tough time convicting somebody 
based on that sort of evidence.
    I mean, I don't want to suggest that any conviction is an 
assured thing. I'm a defense lawyer. But the evidence--the 
process in Federal court has proven itself to be capable of 
trying, protecting all the evidence, identity of friendlies and 
intelligence operatives, to put the evidence on, to do it in a 
nuanced way. Juries don't see classified evidence, and neither 
do the defendants. We've convicted a bunch of people. They're 
already locked up.
    Mr. Johnson. Well, what about the issue of national 
security secrets being revealed in a civilian trial setting?
    Ms. LeBoeuf. That hasn't happened. We have the Classified 
Information Procedures Act, CIPA as its known, that has proven 
itself again and again to be a flexible and successful tool for 
assessing whether or not classified evidence can be introduced 
in a court of law. And we've had case after case after case.
    Mr. Nadler. The time of the gentleman is expired.
    I now recognize the gentleman from Iowa.
    Mr. King. Thank you, Mr. Chairman.
    I want to thank all the witnesses for your testimony. I 
missed some of it, as you well know, and I regret that, but we 
have multiple duties on this Hill.
    One of the things that comes to mind to me is the questions 
or challenges as to the credentials of one of our witnesses Mr. 
Joscelyn. And it occurs to me this question: Mr. Joscelyn, or 
anyone in the panel, but especially you, would you know that 
whether if the President of the United States were to appoint 
you to the Supreme Court of the United States, would there be 
any qualifications that you would be missing that would 
disqualify you from such a role?
    Mr. Joscelyn. From the Supreme Court of the United States?
    Mr. King. Yes.
    Mr. Joscelyn. I would be the last person to be expected to 
be appointed to the Supreme Court of the United States.
    Mr. King. You would be ahead of me, Mr. Joscelyn. But you 
don't have to be a lawyer to be appointed to the Supreme Court.
    Mr. Joscelyn. That may be. I don't know either way.
    Mr. King. That's my point. So for someone to be indicted 
for not being a lawyer, however that might be used within the 
vernacular of this Committee, I think is something that most of 
the American people would object to that concept. We have an 
awful lot of smart people that can bring a lot of information 
to bear that have not graduated from law school or passed the 
    Mr. Johnson. Would the gentleman yield?
    Mr. King. I would yield.
    Mr. Johnson. Okay. Just a short statement. I'm not in any 
way downgrading or low-rating laypersons, but we have a defense 
lawyer, we have a prosecutor, and we have a--I mean, we have 
three lawyers here. And my only point was that we should try to 
do harder on your side to bring people who match the 
requirements of this hearing.
    Mr. King. Reclaiming my time. And I appreciate his point, 
and I hope he appreciates mine, that I simply want to 
illuminate the other side of the argument. I don't contend that 
the gentleman doesn't have an argument. I just illuminate the 
other side, which is that one could be appointed to, and some 
have been appointed to, the Supreme Court, confirmed and served 
honorably in that capacity and not as lawyers. So I make that 
    Then I look at the times that Congress has tried to comply 
with the decisions of the Supreme Court and have passed first 
the Detainee Treatment Act, and then we saw the Hamdan case, 
and then we did the Military Commissions Act. Then we saw the 
Boumediene case.
    And this Congress has gone through, jumped through a lot of 
hoops to try to accommodate some judgments of the Supreme 
Court. And, in fact, we had article III, section 2 strip the 
Court, the Supreme Court, of having any jurisdiction over such 
acts, and yet--and directed the exclusive appeals to go to the 
D.C. Circuit where the D.C. Circuit found with the Congress and 
with the bill that was signed by the President at the time.
    And so I wonder sometimes if the Supreme Court should go 
back and look at article III, section 2. Justice Scalia in his 
opinion in the Hamdan case wrote that the cases of article III, 
section 2 stripping are legion in the history of the United 
States, a very well-founded principle. And I want to make the 
point that we are here jumping through more hoops in an attempt 
to try to accommodate the necessity for national security at 
the same time we are attempting to accommodate a Supreme Court 
that I think has outstepped its bounds more than once with 
regard to these issues that have to do with the detainees.
    And furthermore, Guantanamo Bay would not be an issue if it 
hadn't been for the fact that Amnesty International, a lot of 
other organizations around the country and the world had 
decided to make it a political issue. I'm among those who have 
been down to visit Guantanamo Bay, as has Mr. Johnson, and we 
are--what I saw down there was a location that most people who 
are incarcerated anywhere in the world would want to trade with 
them; air-conditioned cells, private rooms, menus with nine 
different items a day to choose three squares from, Korans for 
everybody who wants one, no Bibles for anyone because it ticks 
off people who want a Koran. The list goes on and on and on.
    And so we are in the business here now of trying to 
accommodate a political issue, and I believe that President 
Obama has made a decision, and it was 2 days after he was 
inaugurated that he signed the Executive Order, and it has been 
since developed to be more complicated. Now we're trying to 
jump through it.
    But the Military Commissions Act, to give authority to 
another Committee to sort these inmates out, the worst of the 
worst, and we have records of recidivism. And I have in my hand 
a press release from just last July 7. It's a Fox News article. 
Mullah Zakir, who was, I guess, a former inmate of Guantanamo 
Bay, was released because apparently he was not a risk, and now 
he rns out to be a commander for the Taliban in Afghanistan. 
And, you know, he was no worse than anyone else being held at 
Gitmo is what one official down there said. Well, now he is a 
commander of the Taliban.
    One in seven recidivism rate roughly is what we saw when we 
turned the people loose who were the least risk to the American 
people. And now we have the worst of the worst. And the 
gentleman Mr. Joscelyn has evaluated these 242 remaining 
    I would ask unanimous consent for an extra additional 
minute, Mr. Chairman.
    Mr. Nadler. Without objection.
    Mr. King. Thank you, Mr. Chairman. I appreciate that.
    And this evaluation that I see shows that 227 out of 242 
have exhibited signs that they are likely to go back into 
battle with the United States.
    So I don't know how we gain anything by handing someone 
over to a committee to be determined whether they're going to 
go to the United States where they can be released into the 
streets of the United States, or be tried under the Commissions 
Act, which I'm actually for that, and I'm for doing it at 
Gitmo. But handing them over to NATO, I'll just tell you that 
in the end there will be innocent people who will die at the 
hands, and are, I think, today, dying at the hands of those 
that have been released from Gitmo. This is a political 
decision, not a prudent one, and there will be more that will, 
and among them----
    Mr. Delahunt. Will my friend yield for a question?
    Mr. King. I yield to the gentleman from Massachusetts to a 
    Mr. Delahunt. I thank the gentleman for yielding.
    I don't think there's any debate that there are some people 
that are guilty, and I don't believe there's a debate that 
there are some people who are totally innocent. What do we do 
about those that are totally innocent and are currently 
detained or have been detained? What's the gentleman's answer 
to that query?
    Mr. King. According to this chart that I'm looking at, 
those that don't show indications, that would be about 15. And 
I think we adjudicate them all through the review tribunals, 
the combat review tribunals. And if they are determined under 
that to be not guilty of the charges brought before them, then 
we have to repatriate them back to a country that will take 
them, most likely their country of origin.
    Mr. Delahunt. Let me ask you this. If their country that 
they would be repatriated to practices systematic torture, and 
in cases such as China, for example----
    Mr. King. The Uyghurs.
    Mr. Delahunt. The Uyghurs, there is a high likelihood that 
they will be executed. If we do not accept some, why should we 
expect other nations to accept any?
    Mr. King. Well, I would say to the gentleman from 
Massachusetts that any other nation that makes that argument, 
and some of them have made that argument, any nation that--we 
are facing this. Germany, for example, has said until the 
United States accepts some, we won't accept any, because if 
they aren't safe enough to come to the United States, then they 
aren't safe enough to come to Germany. And that applies to a 
number of other countries in the world. And our argument then 
needs to be, well, if we have to accept them into the United 
States, why do we need anyone to accept these inmates from 
Guantanamo Bay?
    Mr. Nadler. If the gentleman will yield. On the assumption 
in a given case that someone is totally innocent. You can't 
hold them in jail forever if they are totally innocent, can 
    Mr. King. These individuals were picked up on the 
    Mr. Nadler. No, no. Excuse me. Some of them were picked up 
near the battlefield, and some of them weren't picked up 
anywhere near the battlefield. Many of them were picked up on 
the battlefield, but by no means all.
    Mr. King. And reclaiming what time I might have, I would 
submit that we have a different understanding of the 
    Mr. Delahunt. Mr. Chairman, I would ask that the gentleman 
get an additional several minutes.
    Mr. Nadler. The gentleman is granted some additional time 
at the Chair's discretion.
    Mr. King. This will be my first experience being granted an 
undetermined amount of time.
    Mr. Delahunt. Well, we want you to have every experience 
    Mr. King. Let me just briefly compliment the gentleman from 
Massachusetts on his sense of humor, and now he's deploying it. 
But I would submit that the battlefield is a 360-degree 
battlefield. It's a different battlefield than the kind of 
battlefield that has lines of----
    Mr. Nadler. Reclaiming----
    Mr. Delahunt. Mr. Chairman----
    Mr. Nadler. Ms. Jackson Lee is waiting, too. Reclaiming the 
Chair's time, or rather the Committee's time. We've heard your 
answer. Thank you. The gentleman's time is expired.
    The gentlelady from Texas.
    Mr. King. And I would be happy to yield back then.
    Mr. Nadler. Thank you.
    The gentlelady from Texas.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Ms. LeBoeuf, let me pose the question to you that had been 
framed by my colleague from Iowa, and the framing of it is that 
we don't care about the security of this Nation. I think the 
ACLU has heard that refrained quite frequently and have been 
challenged for what seems to be by some opinion as 
overreaching, using the Supreme Court to, in fact, provide 
insecurity for the United States.
    So help me understand, though you may have said it--I know 
that when it is repeated, more facts come to mind--the 
commitment that you thought you had with the present 
Administration, the previous announcement, and then ultimately 
the commitment that you want to have to keep that position; and 
what changes, secondarily, you would want to see in a military 
commission; and thirdly, how do you make the argument that you 
are not making this country less secure?
    I also will say to you that I, too, have been to Guantanamo 
on many, many occasions. I went to Guantanamo when tents were 
there. So it is a considerably more improved facility, which I 
would hold that this is American, meaning that this is who we 
are, these are our values, so we're not doing anything 
extraordinary. But I think the underlying premise has to be 
that we are holding individuals under a creation, a creature of 
ours, military commissions, and the issue is can we secure 
intelligence, can we secure America if we do something 
    If you would start from the commitment and work your way 
through three questions that I have.
    Ms. LeBoeuf. Thank you, Congresswoman. I'll do my best, and 
I may need a refresher. I want to make sure I do answer them.
    First of all, ``safe and free'' is the slogan we have used 
from the beginning, because we need both. And safe means safe 
to be us. I find it interesting that the Congressman from Texas 
believes that if terrorists are locked up among American 
criminals, it will be the terrorists who recruit, when, in 
fact, perhaps it will be the criminals who were born and raised 
in a democracy who will recruit. One never knows.
    Ms. Jackson Lee. Might I interject, because my time is 
short. If you can go back to the original question. And I 
appreciate the overview as I gave you the overview. I would 
appreciate what was the commitment you had from the 
    Ms. LeBoeuf. Well, I mean, the commitment we had from the 
Administration is the commitment that President Obama gave to 
the United States, to the electorate that Guantanamo would be 
closed. He also spoke against the military commissions. And 
when the military commissions were put on hold immediately 
after the Administration was--after the inauguration, which I 
witnessed from Guantanamo, we believed that that was going to 
be the end. Instead we have hearings next week. And while many 
Members of Congress have been to Guantanamo, I do not believe 
any Members of Congress have witnessed a military commission 
    Ms. Jackson Lee. And let me say that I probably have not 
witnessed it, but I have been briefed on it, and obviously I 
don't believe we have sat in on it. So let's go to the next 
question then.
    What changes do you want in what is now still existing in 
military commission beyond the elimination? There is an 
elimination, meaning to end, and what would you put in place?
    Ms. LeBoeuf. Congresswoman, I think that what's wrong with 
what the past Administration did and what this Administration 
seems to be starting to do is turning this upside down. You 
don't settle where these people belong by figuring out what end 
you want. You don't say, I want this guy to end up locked up 
for life, so therefore I'm going to look at the evidence and 
say maybe he would get acquitted in a Federal court, so I'm 
going to put him in a military commission where he can get less 
justice, or I'll put him away for life with no justice, no 
review, and call it preventive detention or indefinite 
detention under some other theory. That's what can't be done.
    Mr. Nadler. Would the gentlelady yield for a moment?
    Ms. Jackson Lee. I would be happy to yield to the Chairman.
    Mr. Nadler. Thank you.
    In other words, I was quoted as saying the following, and 
tell me if you think it's a just definition of what we seem to 
be going toward: that we're going to divide the prisoners into 
different classifications. Those who we have good evidence 
against will get fair trials. Those who we have weak evidence 
again, we'll give less fair trials. Those we have no evidence 
against, we'll just keep them locked up for preventive 
detention without any trial at all. In other words, we'll fit 
the process to the result and, in fact, have kangaroo justice. 
Is that a fair description of what we seem to be going toward?
    Ms. LeBoeuf. It's absolutely fair and far more eloquent 
than I was being. Thank you.
    Mr. Nadler. I thank you.
    And I thank the gentlelady, and I yield back to her.
    Ms. LeBoeuf. And your question about how to reform military 
    Ms. Jackson Lee. I'm sorry, I was getting ready to say so 
it's an upside down hybrid in essence. As the Chairman has 
indicated, there is a way of selection that has sort of 
intervening, I think, a nonstatutory, nonconstitutional process 
which is I'm just going to look at what I have and go eeny, 
meeney, miny, moe to a certain extent, because it is subjective 
to say what evidence is and who goes and who doesn't. But I 
would ask then on these military commissions would you believe 
that to be an effective going forward; would you believe that 
could be effective?
    Ms. LeBoeuf. No, in a word. Of course, theoretically the 
military commissions can be modified, can be amended to make 
them fair courts, but once they are truly fair, they're going 
to look just like Federal court, and then there's no reason to 
accept the taint of the past unfairness of military 
commissions. Why drag them down when there's no need?
    The only benefit that military commissions give you is that 
it's a second-rate system of justice, and you're going to get 
more convictions. If you want to accept that, then, you know, I 
mean, that answers itself. Yes, you can--the changes that are 
proposed are primarily cosmetic, particularly because of the 
burdens on defense counsel; not just resources, but choice of 
counsel. But if you proposed full change that would make this a 
Geneva-friendly--a real court of law, it would look like 
Federal courts. Why not put them in Federal court?
    Ms. Jackson Lee. And how do you protect America? This is my 
last question, Mr. Chairman, and I will yield back. How do you 
refute that we are releasing terrorists into our society?
    Ms. LeBoeuf. Well, the analysis that I have seen, not done 
by Fox News, but done by Seton Hall's very able academic 
committee, shows far smaller numbers of people who may be 
engaged in behavior that's inimical to the United States. Of 
the 500 people or so that the Bush administration released with 
no process whatsoever, it can be presumed that a few are making 
trouble, but that's a small few, and that's no reason to turn 
justice upside down. Senator McCain said it the best: It isn't 
about them, it's about us. Safe to be us, that's what we need.
    Mr. Nadler. The gentlelady's time is expired.
    Ms. Jackson Lee. I yield back. Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    And before we conclude the hearing, unlike every other 
questioner who we indulged with a couple of extra minutes, we 
cut off Mr. Delahunt rather sharply before because we had to go 
for a vote. So I will recognize Mr. Delahunt for a few minutes 
now if he wishes to.
    Mr. Delahunt. Well, Mr. Chairman, this has been a very good 
hearing, and I'm going to have a hearing in front of the 
Foreign Affairs Committee where my intention is to invite many 
of the same witnesses.
    I would like to address some questions to Mr. Joscelyn. Can 
you identify Mr. Hasan Mahsum.
    Mr. Joscelyn. Mahsum, yes.
    Mr. Delahunt. Who is he?
    Mr. Joscelyn. He was a former leader of ETIM/TIP. That's 
the Eastern Turkistan Islam Movement/Turkistan Islam Party. And 
he reportedly died in northern Pakistan, I believe, in 2003.
    Mr. Delahunt. Right. Did he--was there information 
regarding any relationship that he would have had with al-Qaeda 
or the Taliban?
    Mr. Joscelyn. Mahsum's story is admittedly more murky than 
Abdul Haq's story, and that's why I focused my analysis on 
Abdul Haq.
    Mr. Delahunt. Well, let's focus on the gentleman who 
purportedly died. What do you know about him and any statements 
that he might have made regarding al-Qaeda and the Taliban?
    Mr. Joscelyn. Well, I mean, first of all, I don't know that 
he made any statements regarding al-Qaeda and the Taliban.
    Mr. Delahunt. You don't.
    Mr. Joscelyn. I don't know of anything he said 
    Mr. Delahunt. You don't.
    Mr. Joscelyn. No. I mean----
    Mr. Delahunt. You're not familiar with an interview that he 
gave on Radio Free Asia?
    Mr. Joscelyn. Are you talking about an interview where he 
denied any relation with al-Qaeda himself?
    Mr. Delahunt. That is exactly what I'm referring to. Are 
you familiar with it?
    Mr. Joscelyn. I didn't remember it offhand, but now you're 
reminding me of it.
    Mr. Delahunt. I'm glad I could refresh your memory.
    ETIM--first of all, let me ask you this. I noticed just now 
that your biography indicates you received your bachelor's 
degree in economics.
    Mr. Joscelyn. Right.
    Mr. Delahunt. How did you come to become an intel agent?
    Mr. Joscelyn. Well, I'm not an intel agent, I'm an intel 
    Mr. Delahunt. I mean, an intel analyst, right.
    Mr. Joscelyn. It was an entrepreneurial endeavor after 9/11 
that I started.
    Mr. Delahunt. Have you been to the Uyghur--the autonomous 
Uyghur territory.
    Mr. Joscelyn. I have not.
    Mr. Delahunt. Have you been to China?
    Mr. Joscelyn. No.
    Mr. Delahunt. Do you speak Mandarin?
    Mr. Joscelyn. I do not.
    Mr. Delahunt. Do you speak Uyghur?
    Mr. Joscelyn. No.
    Mr. Delahunt. Let's talk about ETIM and this camp. How big 
was the camp?
    Mr. Joscelyn. How big in what sense?
    Mr. Delahunt. How many men were there?
    Mr. Joscelyn. From what I've read, a few dozen at a time.
    Mr. Delahunt. A few dozen at a time, okay.
    It would appear from all of the transcripts that I've read 
that are unclassified that there's a consistent theme that 
those men that were there fled China because of persecution. 
Have you read similar statements coming from them?
    Mr. Joscelyn. I have read that some of them have said that, 
    Mr. Delahunt. Okay. Anyhow, let me just read into the 
record, Mr. Hasan Mahsum may have a relationship--this was a 
question that was posed to Mr. Parhat. Do you know anything 
about this? Mr. Parhat said, I don't think so. The people in 
Turkestan will not associate with al-Qaeda.
    Now, you're familiar with the form of Islam that the 
Uyghurs practice, correct?
    Mr. Joscelyn. I don't think there's one form of Islam 
Uyghurs practice, from my readings on the topic.
    Mr. Delahunt. Well, in terms of your readings, which one 
seems to receive the preference, if you will, by a vast 
majority of the Uyghurs?
    Mr. Joscelyn. Certainly not the Jihadist Islam as practiced 
by the ETIM.
    Mr. Delahunt. And ETIM, we had a hearing in my committee 
where scholars, Uyghur scholars, people prominent in the 
community, had never heard of ETIM. And there's still some--you 
used the term ``murky.'' Let me suggest that it's murky, but 
let's grant that there is an ETIM. We'll see you in front of my 
    Mr. Joscelyn. I'll be happy to.
    Mr. Delahunt [continuing]. Where we will welcome you.
    And let me just say to you, Colonel, you have my respect.
    Mr. Conyers. Mr. Chairman.
    Mr. Nadler. I thank the gentleman.
    For what purpose does the Chairman seek recognition?
    Mr. Conyers. For the usual reasons, to have the last 
conversation with these very energetic and stamina-contained 
witnesses that have been with us today.
    Mr. Nadler. The gentleman is recognized.
    Mr. King. Mr. Chairman.
    Mr. Conyers. Oh, I'm sorry. Steve King has come in, 
unbeknownst to me.
    Mr. King. I would just ask if the Chairman would yield to 
an inquiry.
    Mr. Conyers. Of course.
    Mr. Nadler. Which Chairman?
    Mr. King. Well, I asked the Chairman of the Subcommittee 
    As I am watching this second round take place de facto, I 
would like to have the Chairman of the overall Committee have 
the last word. And so if we're going to do a full second round, 
I would appreciate the opportunity.
    Mr. Nadler. Yeah. I hadn't intended to do a full second 
round, but I could not say no to the Chairman of the full 
Committee, so let him proceed. And if you want to be 
recognized, I'll recognize you.
    Mr. King. Thank you, Mr. Chairman.
    Mr. Conyers. Well, thank you very much. I thought that 
there was going to be a second round.
    I merely wanted to go through these four excellent 
witnesses today, all with slightly different viewpoints. And I 
would like to ask Colonel Vandeveld his feelings now about the 
issues that are attempting to be resolved here. First, most 
people believe that the military commission should be 
abolished. Secondly, and this is my impression, secondly, many 
people don't think that they can be perfected. And this goes 
against some of the Senate proposals by my good friend, the 
senior Chairman of the Armed Services Commission, from 
Michigan. And third, there still seems to be some lingering 
problem that I'm sorry I haven't resolved since I heard it that 
there may be a justifiable reason to keep people in prison when 
we don't have any charges to bring against them; they're bad 
people, we think they may be bad people, or they were bad 
people and we can't prove it, whatever the reason. And from a 
distinguished member of the bar like Ms. Pearlstein, whose 
overall testimony I find quite important and relevant, I just 
have a little bit of doubt as this hearing closes down as to 
what kind of circumstances could there be that a person can't 
be tried in a Federal court or tried by a military court-
martial? What is their problem, and what are your impressions 
about the comments?
    This is the period in which we allow you to reflect upon 
statements that you've heard from your fellow witnesses that 
you might want to share with us today that either interest you 
or concern you.
    Lieutenant Colonel Vandeveld. Thank you, sir.
    I was struck when Mr. King spoke about the difficulty 
Congress is having with complying with the Supreme Court's 
various orders regarding the commissions. In fact, there have 
been four Supreme Court cases, and the government's position 
has not prevailed in each situation.
    It seems to me that if Congress wanted to save--and I don't 
mean to be flip by saying this, but if Congress wanted to save 
itself a lot of work, it could simply abrogate the military 
commissions entirely, and that would permit military courts-
martial to go forward, which have already been tested, which 
are well accepted. And as I say, those who, for security 
reasons or reasons of national security, protections of sources 
and methods, have to be tried under more stringent 
circumstances can be tried in article III courts. And so I see 
a system already in place, two systems already in place, for 
dealing with the detainees at Guantanamo.
    As far as preventive detention goes, prolonged detention, 
it's been my experience, based upon my review of evidence at 
Guantanamo, is that most of the evidence of someone's future 
dangerousness is derived either from statements by the 
detainees themselves who engage in braggadocio or fellow 
detainees who decide they want to curry favor with the prison 
officials and denounce somebody. I don't know of any reputable 
psychiatrist who would testify in any court of law that 
somebody--they could predict with certainty about someone's 
future dangerousness.
    And I'm always reminded in that respect of Dick Cheney's 
comments in 1985 when he was a Member of Congress that Nelson 
Mandela should be continued to be held at Robben Island because 
he was a terrorist. And he reaffirmed his commitment to that 
position after Mr. Mandela was awarded the Peace Prize in 1994. 
So clearly, if a decision like that is left up to the 
executive, there is also the possibility of human error. If 
it's left up to courts--and I'll be finished up in 2 seconds--
if it's left up to courts, then we find ourselves in the same 
position. As we know from cases like Judge Samuel Kent, judges 
are human, they make mistakes. We know from the 5-4 decisions 
that consistently come out of the U.S. Supreme Court that 
judges have an ideological bias, and I don't see how that's 
    So I would urge this Committee to abrogate entirely, repeal 
the Military Commissions Act and restart courts-martial and 
article III proceedings for those cases that need it, and I 
thank you.
    Mr. Conyers. I thank you very much.
    With the indulgence of the Chair, I would like to ask the 
same question of our ACLU counsel.
    Ms. LeBoeuf. I think it's been clear that the two lawyers 
at this table who have either witnessed or been at the 
commissions do not think that their continued existence is a 
wise course, that they cannot be made fair, and they cannot be 
made to look fair.
    We hear a lot about arrests on the battlefield and Miranda 
on the battlefield. This is a distraction. Most of the people 
at Guantanamo were not arrested in battlefields; they were 
arrested in apartments. And Miranda is not a question; 
voluntariness is the question.
    We can't hide from what the commissions were set up to do, 
not just try people with tainted evidence, but hide the details 
and identities of those who obtained that tainted evidence, to 
hide the details and the identities of torturers. And if that's 
the goal, the result will be illegitimate.
    There is no system under our law that permits us to put 
people--to deprive people of their liberty without process of 
law. You can't do it. In war, when it is a legitimate war, and 
there are prisoners of war, that's a different issue, the 
hypotheticals that Ms. Pearlstein gave, perhaps if it applies 
to anyone at all at Guantanamo, if indeed it is a legitimate 
war. But we can't back away from what we are set out to do 
here. And what I believe Congress has set out to do is figure 
out a way to assess the cases at Guantanamo with a system of 
law that we and our allies can rely upon, and that is doable.
    Mr. Nadler. The gentleman's time is expired.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    Mr. Conyers. Would Steve King allow me just one?
    Mr. King. I would be happy to, Mr. Chairman.
    Mr. Conyers. You see, I feel very badly because I got the 
feeling intuitively that Attorney Pearlstein wanted to get in 
on the discussion since her ideas came up. And it seems unfair 
of me to ask them and not her.
    Ms. Pearlstein. Thank you. Thank you very much. I 
appreciate it.
    Mr. Conyers. I thank Mr. Steve King of Iowa.
    Ms. Pearlstein. And thank you, Congressman, as well.
    I'll be brief. First, to clarify, I've also been to 
Guantanamo, observed the military commission proceedings. I 
spent a year and a half of my career working to get access to 
the commission proceedings and was in the first team of human 
rights observers to go to Guantanamo to observe them. And I 
could not concur more strongly with Lieutenant Colonel 
Vandeveld and Ms. LeBoeuf that the commissions to date have 
been, as I said in my testimony, a gross failure of law and 
policy. There is nothing that I have said in my written or oral 
testimony that should indicate to the contrary. In fact, I 
think I've been quite clear that I disagree profoundly that 
these commissions should be continued.
    What should be done with respect to the resolution of the 
cases at Guantanamo? I very much hope that with respect to the 
Chairman's characterization of the approach that we are on the 
way to taking is wrong, if that is indeed the approach, it 
would be not only contrary to law, but an embarrassment to the 
United States.
    What I think we should do, if I could wave a magic wand and 
set policy here, is divide the detainees into two categories 
with a very limited exception as I set forth for a third. 
Category 1 is that the people who should be prosecuted who have 
done something wrong should be prosecuted in article III 
courts. I continue to believe that's possible. The President 
and the Senate Armed Services Committee appeared to disagree 
with me, and that is why I have offered recommendations for, if 
they are to pursue the course of military commissions, how I 
think they can do that most effectively.
    A second category are the people that should be released or 
transferred, either because they have done absolutely nothing 
wrong or are not combatants of any kind. And even the Bush 
administration before it left identified some remaining 50 to 
60 people who fit that category, and I understand those people 
are in the process of being released or transferred now.
    I believe that there is a limited, very limited, third 
category. A person who commanded Taliban troops in battle, for 
example, in 2002 could be transferred to the Afghans for 
continued detention, or I think could be transferred by the 
United States for continued detention. Do I think that's a wise 
course? I think it comes with tremendous strategic costs to the 
Administration and the United States in light of the policy 
course and the unlawful course we have pursued in the last 8 
years. We are now behind the ball in protecting human rights 
internationally and abiding by our own law that not only 
jeopardizes and has jeopardized our relations with our allies, 
including our joint counterterrorism efforts, it has set us 
back a generation in combating terrorism around the world.
    Mr. Conyers. But those who have led combat as you described 
as a limited number, they can be treated as prisoners of war.
    Ms. Pearlstein. They could be treated--they should have and 
could have been treated as prisoners of war during the 
international armed conflict phase of the conflict with the 
United States and Afghanistan. If we continue to detain them in 
Afghanistan, my view would be that as a matter of policy it is 
wise to treat them as prisoners of war now.
    Mr. Nadler. The gentleman from Iowa continues to have the 
    Mr. Conyers. I thank the gentleman.
    Mr. King. Thank you, Mr. Chairman.
    I'm always happy to hear the input as requested by the 
Chairman of the full Committee and the Subcommittee for that 
matter. And I would start this by saying I was struck by the 
analysis of Lieutenant Colonel Vandeveld that we have had four 
Supreme Court decisions on this case, on this subject matter, 
and that the government's position hasn't prevailed in any of 
    I would submit that it clearly did with the cases that went 
before the D.C. Circuit. And in the cases where the Supreme 
Court overreached their jurisdiction and reversed the D.C. 
Circuit, yes, the final analysis prevailing, that's what I 
think the gentleman is referring to. But the point is that this 
Congress told the Supreme Court you didn't have jurisdiction, 
and they heard the cases anyway. And our Founding Fathers never 
imagined that the Legislature wouldn't be jealous of protecting 
its own power.
    And from my perspective, I received the Hamdan case on 
Thursday. It came out on a Thursday. I got my hands on the 
decision on Friday. I sat in my backyard on Saturday morning, 
and by 1:30 in the afternoon I came to a conclusion all written 
up with margin notes in red ink. But it was too late because 
the President and the respective Chairs of the Judiciary 
Committee and the House and the Senate and, I presume also at 
that time, Ranking Members had already made the statement we 
were going to try to comply with the Supreme Court.
    I think that this Congress has got to jealousy protect its 
constitutional power, or we end up with these kind of analyses 
that cause us to jump through these hoops.
    And I thought it was also interesting that Lieutenant 
Colonel Vandeveld then later on said that judges have 
ideological bias, and we can't get away from that. So I think 
that balances this. And I think you see it with a legitimate 
perspective. And I just add mine to your very legitimate 
testimony, and I appreciate the points you made.
    Mr. Conyers. Would the gentleman allow me to inquire?
    Mr. King. I would yield.
    Mr. Conyers. What would we do; after you wrote those notes 
in the margin of the decision, how would you take on the United 
States Supreme Court?
    Mr. King. I would tell them that we have given them 
direction that's consistent with the Constitution, and we have 
national security at stake. And it would have to be--the 
President of the United States would have to be in the same 
position, and consistently with that of the Legislature, and we 
would have to proceed. And we might pass a resolution that 
simply says national security and the Constitution are more 
important than the built-in bias potentially of the Supreme 
Court itself, and that they didn't have jurisdiction, and that 
we take an oath to the Constitution as well, not an oath to 
their interpretation of it as they amend it on the fly. The 
nine Supreme Court Justices are the last nine people on the 
planet that should be amending our Constitution.
    Mr. Conyers. You're saying, in other words, there ought to 
be a law.
    Mr. King. I just simply said a resolution, because we 
already passed a law, and the Supreme Court stretched across 
that, in my opinion.
    Mr. Conyers. Well, resolutions----
    Mr. King. And I think the majority of the D.C. Circuit 
would agree with me.
    Mr. Conyers. Resolutions are statements of view without 
any--they carry no force.
    Mr. King. Reclaiming my time. Then I suggest that we 
proceed under the laws that we had passed that were legitimate, 
because national security is more important. And I would weigh 
that decision very, very heavily as well.
    Mr. Nadler. Would the gentleman yield?
    Mr. King. I hope we can extend the clock because I've got a 
point I would like to make.
    Mr. Nadler. I'll take only about 15 seconds.
    Mr. King. Sure.
    Mr. Nadler. In other words, what the gentleman is saying 
when you say we should proceed under the laws, et cetera, is 
that we should ignore the decision of the Supreme Court because 
we think it wrong?
    Mr. King. We have those circumstances that arise, yes. And 
I recognize the precedents that have been established for 206 
years. However, I make the point that what is the Chairman and 
the Chairman of the Subcommittee and the full Committee, what's 
their alternative if the Supreme Court determines that they are 
going to make decisions that put the security of the United 
States at risk that are extraconstitutional decisions? Do we 
have no voice?
    Mr. Conyers. Are you suggesting that they are removable by 
some process?
    Mr. Nadler. Did the gentleman want to answer?
    Mr. King. Just continue the dialogue.
    Mr. Nadler. I'll answer in one sentence.
    Mr. Conyers. You can't answer for him.
    Mr. Nadler. No, he asked me a question.
    If the Supreme Court rules incorrectly, if it's a statutory 
matter, we can pass a statute. If it is a constitutional matter 
as this is, our only recourse is to amend the Constitution 
through the normal process of doing that.
    Mr. Conyers. Well, there is still yet another--I guess 
it's--I didn't know if I heard this in the tone of his remarks. 
Are you suggesting that they may be removed through some 
constitutional process?
    Mr. King. I didn't make that suggestion. What I'm really 
suggesting is there is precedent for what I have suggested. In 
the case of important national security issues, when the Court 
has made, in the collective judgment of the Congress and the 
executive branch, an extraconstitutional decision where we 
clearly, under clear precedent in article III, section 2, strip 
their jurisdiction, then I think we apply in the national 
security circumstances, put it up for a vote, and we use the 
Andrew Jackson rule: You made the decision, now you enforce it. 
That's my position. And may I now reclaim my time?
    Mr. Nadler. You can reclaim your time, what's left of it.
    Mr. King. And I would ask if a couple of minutes could be 
put on the clock.
    Mr. Conyers. I'll ask that he be given unanimous consent 
for as many minutes as you and I deprived him of.
    Mr. Nadler. I'll rule that as 2 minutes.
    Mr. King. That was exactly gentlemanly, and I appreciate 
    And so recovering my time and reestablishing this line of 
questioning, the question was the point was also raised by 
Lieutenant Colonel Vandeveld on evaluating someone's future 
dangerousness. And it's an interesting expression, and I think 
it's an accurate one. But I know that the gentleman, Mr. 
Joscelyn, has evaluated each of these and each of these 
detainees. And I'm aware that there are on average about 20 
attacks on our guards on any given day down at Guantanamo Bay. 
About half of the time they're throwing feces in the faces of 
our guards. The other half of the time, it's a physical attack 
designed to physically injure them. The worst thing that we do 
to punish them is reduce their outdoor exercise time down to 2 
hours a day. And as far as I can determine there are no charges 
brought against them for assaulting our guards. But I wonder 
if, Mr. Joscelyn, if you've evaluated the number of inmates 
that have attacked our guards and if that's part of your 
    Mr. Joscelyn. I have not evaluated those data. My analyses 
were primarily based on taking into account all of the 
unclassified material on each detainee and figuring out 
compiling sort of a biography on each of them, and that was 
sort of the heart of my analysis. I did not conduct a true 
future of dangerousness, future dangerousness study. That is 
not something I have done.
    Mr. King. And so I would submit this thought for the 
deliberation of the panel, and also the witnesses, because 
you're part of the brain trust here today, that if we had a 
statute that we could use to charge these detainees when they 
attack our guards, wouldn't we also then have the foundation by 
which we might be able to resolve some of the legal 
entanglement that we're in simply by bringing those charges 
against them and sentencing them under our charge that we 
would, I think, have to create here in this Congress of 
attacking our guards?
    I mean, I walked amongst a group of inmates just this past 
week who were incarcerated in the United States. There was no 
problem. I could walk among them, talk to them, turn my back on 
them, and no one had any sense of alarm. But our guards dare 
not do that because they're attacked every day. Not a day goes 
by at Guantanamo Bay. Is there anyone on the panel that would 
like to address that idea?
    Mr. Nadler. The gentleman's time is expired, but I'll 
permit someone on the panel to answer that question.
    Ms. LeBoeuf. If any of the--most of the detainees, 
particularly the high-value detainees, are under protective 
order that prohibits any word being spoken about the conditions 
of confinement. So had they said anything about any attacks 
witnessed or perpetrated against guards to their attorneys, 
their attorneys would be prohibited from saying it to anyone 
    Mr. Nadler. Thank you.
    The gentleman's time is expired. I now recognize myself for 
my second round since we took a second round.
    Colonel Vandeveld, very quickly, because I want to have a 
number of other questions, if someone lays a roadside bomb in 
Afghanistan, is that an act of war, or is that a crime, and 
    Lieutenant Colonel Vandeveld. In order for a crime to be a 
crime of war, it has to be either directed at a protected 
    Mr. Nadler. No, no. Assuming someone tries to kill American 
soldiers, is that a crime, or is that an act of war?
    Lieutenant Colonel Vandeveld. That's a matter of debate. In 
my opinion, it is not an act of war.
    Mr. Nadler. Why?
    Lieutenant Colonel Vandeveld. Because the target would be 
lawful assuming that it was targeted against U.S. soldiers.
    Mr. Nadler. So it would be an act of war?
    Lieutenant Colonel Vandeveld. I'm sorry, it would be an act 
of war, but it wouldn't be a war crime.
    Mr. Nadler. That's what I'm saying. So that would be an act 
of war, it wouldn't be a crime. So the person who did that 
presumably, if captured, would be a prisoner of war, but would 
not be subject to criminal prosecution.
    Lieutenant Colonel Vandeveld. Correct, unless they had lost 
their combatant immunity by not wearing a uniform.
    Mr. Nadler. In a guerrilla war, if they're not wearing a 
uniform, that would be a crime then.
    Lieutenant Colonel Vandeveld. They would be subject to 
prosecution because they would not have combatant immunity.
    Mr. Nadler. Okay. Thank you.
    Now, I'm obviously disturbed by the discussion of the 
ability of the President to declare that someone who has been 
acquitted in a trial can be detained indefinitely nonetheless. 
Now, I presume--and I'm going to ask this of Ms. Pearlstein and 
of Ms. LeBoeuf--I presume that that is not pursuant to any 
power to detain people indefinitely on the grounds of potential 
danger, but it is pursuant, if it exists at all, to the ability 
of holding someone, of holding a combatant--or is the combat 
during a war, is that the source of that power?
    Ms. LeBoeuf. I think the Hamdi decision, Chairman, is--
clearly gives a limited and--although not specific, but some--
you know, there's an expiration date on it--a limited authority 
under the AUMF to hold nonpunitively, that is, not a 
punishment, you know, imprisonment, but to hold someone for 
some period of time because of their combatant status.
    Mr. Nadler. The period of time being while the war is on.
    Ms. LeBoeuf. That would be under traditional laws of war, 
certainly. But the Hamdi decision made--Justice O'Connor made 
this distinction between punitive detention and nonpunitive 
detention and said that Hamdan gave, as I say, limited 
authority in limited cases, and clearly indicated that that 
wouldn't last forever.
    Mr. Nadler. So when the President said that there's some 
people who are too dangerous to release, or if anybody proposed 
preventive detention because of someone's potential future 
dangerous conduct, there is no legal authority for that.
    Ms. LeBoeuf. No.
    Mr. Nadler. None.
    Ms. LeBoeuf. None.
    Mr. Nadler. And there shouldn't be.
    Ms. LeBoeuf. No, that's right.
    Mr. Nadler. Why not?
    Ms. LeBoeuf. Because we don't have magic balls. These 
aren't the witch trials.
    Mr. Nadler. Thank you.
    Ms. Pearlstein, would you address yourself to those two 
questions, please?
    Ms. Pearlstein. The President does not have the authority 
to detain people on the basis of dangerousness.
    Mr. Nadler. Does Congress have the power to give him that 
    Ms. Pearlstein. No, I don't believe it does, because I 
believe that detention on the basis of dangerousness alone is 
    Mr. Nadler. Okay.
    Ms. Pearlstein. The Supreme Court has never authorized a 
statute of that nature, and I think would be contrary to due 
process and most of the values that the United States stands 
    Mr. Nadler. And if Congress had such a power, under what 
delegated provision of the Constitution--from whence in the 
Constitution might Congress derive such a power?
    Ms. Pearlstein. If Congress had such a power?
    Mr. Nadler. Is there any provision you can think of that 
someone could misinterpret to give us that power?
    Ms. Pearlstein. The foreign commerce clause.
    Mr. Nadler. The what?
    Ms. Pearlstein. The foreign commerce clause. For example, 
if we wanted to exercise extraterritorial authority to detain 
people on the basis of dangerousness, the only theory I can 
conceive of is the foreign commerce clause.
    Mr. Nadler. Now, what about--you did talk before about the 
ability to hold someone, and I presumed you meant--and the 
Chairman of the Committee asked about this before. I presumed 
you were talking about keeping somebody out of combat as a 
prisoner of war or analogous to that.
    Ms. Pearlstein. That's right.
    Mr. Nadler. And what authorities are there to that, and how 
is it limited, and to what extent?
    Ms. Pearlstein. What the Supreme Court held in Hamdi is 
that the authorization for the use of military force, the 
statute that Congress passed in 2001 authorizing the President 
to use military force, included with it some implied detention 
authority so that the President could detain, in Hamdi's case, 
somebody who was actively engaged, directly engaged, in 
hostilities against the United States in Afghanistan.
    Mr. Nadler. Now, the traditional situation--in World War II 
things were simple. If you found someone wearing a Wehrmacht 
uniform, holding a rifle, and you captured him in Normandy, 
then he was obviously a prisoner of war, and you put him in the 
prisoner of war camp for the balance of the war. If you pick up 
someone in Afghanistan who says, no, I live in this village, 
I'm not a combatant, I didn't have a rifle in my hand, or, I 
had a rifle in my hand, I was going out hunting supper, that's 
how I make my living, I hunt, or whatever, what process is 
necessary or legal or required to determine who is a 
legitimate--I don't know if we would call them a prisoner of 
war if he's not in uniform or a combatant. We have the 
authority to hold combatants for the duration of the combat, 
you've said, but is there some necessity for some sort of 
process to figure out if someone is indeed a combatant?
    I mean, I keep hearing my Republican friends talking about 
terrorists, and they should have rights, and they shouldn't 
have rights. And my constant question is, well, that may be, 
maybe terrorists shouldn't have rights, but someone has the 
right to have a fair process as to whether, in fact, they are a 
terrorist or, in this case, a combatant. So what process is 
necessary or is legal to----
    Mr. King. Will the Chairman yield?
    Mr. Nadler. No, I will not yield at this point, not until I 
get an answer to this question.
    What process is necessary to determine whether someone is 
or is not, in fact, a combatant? Are we giving it that process, 
or are current processes adequate to that?
    Ms. Pearlstein. The answer to the second question is our 
current processes in Afghanistan are not adequate.
    Mr. Nadler. Excuse me?
    Ms. Pearlstein. Are not adequate.
    The answer to the first question is if we are talking about 
a circumstance of traditional international armed conflict, as 
was the case in 2002 in Afghanistan, the Geneva Conventions 
provide under article V that they're entitled to a hearing, a 
status hearing, to determine whether or not, in fact, they can 
be detained. And the Army has regulations providing how those 
hearings are to be carried out. And indeed, that was exactly 
what the Army did in Iraq in 1991 and in many other instances.
    Since the litigation post-September 11, 2001, it is now 
increasingly clear that those people also likely have, or at 
least some set of those people also likely have, some 
additional set of due process rights, including the right to 
habeas corpus. And the question of whether the Boumediene 
decision recognizing a constitutional right to habeas corpus of 
the Guantanamo detainees, many of whom were captured under 
those circumstances, extends to at least some of those people 
in Bagram now.
    Mr. Nadler. So is a habeas corpus proceeding a substitute 
or an adequate substitute for an article III proceeding?
    Ms. Pearlstein. I would certainly say that it is an 
adequate substitute.
    Mr. Nadler. That it is inadequate or adequate.
    Ms. Pearlstein. It is more than adequate.
    Mr. King. Will the gentleman yield?
    Mr. Nadler. I will in a minute after I finish this line.
    Ms. Pearlstein. I should be clear, the Supreme Court has 
not yet held that habeas is required under those circumstances.
    Mr. Nadler. So if habeas is not required, an article V 
proceeding would be required?
    Ms. Pearlstein. An article V proceeding would be required 
under any circumstance.
    Mr. Nadler. So anyone who is held in Guantanamo or anywhere 
else today for that matter, so if someone says that we want to 
hold this person despite the fact that he was acquitted in a 
military tribunal, let's say, or we want to hold this person 
who hasn't been tried in a military tribunal because he's a 
combatant, he is entitled either to habeas corpus or article V 
    Ms. Pearlstein. Are you talking about the circumstances in 
Afghanistan today?
    Mr. Nadler. In Afghanistan, in Bagram, in Guantanamo, 
anywhere. What process is necessary for someone whom we say, 
we're not charging you with a crime, we want to hold him as a 
    Ms. Pearlstein. This gets slightly complicated, so if you 
would just indulge me a moment. There are two kinds of armed 
conflict recognized under international law; international 
armed conflict, state against state, U.S. versus Afghanistan, 
which most would say ended in 2003 with the transfer of 
sovereignty. There is also so-called noninternational armed 
conflict, which would be better described as transnational 
armed conflict. That is armed conflict between two parties 
where one party is not a state, but an organization, a 
substate, a failed state, et cetera.
    Mr. Nadler. A civil war.
    Ms. Pearlstein. Civil war classically, yes, absolutely.
    There is nothing in international law that precludes 
continued detention in a circumstance of noninternational armed 
    Mr. Nadler. Without any process.
    Ms. Pearlstein. There is Common article III, which requires 
some basic standard of process, but it doesn't give much 
content to what that amount of process would be required.
    What is required is some separate affirmative authority. 
That is, there is nothing in international law that precludes 
continued detention, nor is there anything in international law 
that provides any state the authority to engage in continued 
    Mr. Nadler. My final question. From what you're saying now, 
to hold someone in a civil war in which we are supporting one 
side, the government, which is what we normally do, to hold 
someone as a combatant in that sort of situation, does Congress 
need to act to set up a proceeding or process, or is that 
process already in existence, and what is it?
    Ms. Pearlstein. My view is that Congress needs to not only 
specifically authorize detention--and the Supreme Court has now 
held at least to an extent the AUMF was that authorization, at 
least to the some extent--and to provide for an adequate set of 
proceedings. Now, some would say the CSRT might account for 
that because CSRTs aren't even--they don't even get CSRTs in 
Afghanistan. Others would say you need full-blown habeas. It 
might be that something in between would pass sort of scrutiny 
under this Supreme Court. But you need some level of due 
process protection.
    Mr. Nadler. Which you don't have if Congress doesn't act.
    Ms. Pearlstein. Or unless the courts--right now the 
courts--the district court with the Bagram case says that 
habeas extends to Afghanistan.
    Mr. Nadler. We'll have to see what the courts say.
    I yield to the gentleman from Iowa.
    Mr. King. Thank you, Mr. Chairman.
    The circumstances have changed a bit since I asked you to 
yield. I was very interested also in the testimony of the 
witness. So unless we are going to have a third round of 
questioning, I will just simply yield back.
    Mr. Nadler. I appreciate that. I am sure everybody 
appreciates that.
    I thank the witnesses for their participation and their 
patience. Without objection--first of all, I yield back. 
Without objection, all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as you can so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion into the 
    And, again, thank you to the Members of the Committee, and 
thank you to the witnesses. The hearing is adjourned.
    [Whereupon, at 1:44 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X


               Material Submitted for the Hearing Record