House Armed Services Committee Hearing

CQ Transcripts Wire
Monday, April 2, 2007; 11:36 AM

MARCH 29, 2007















































































SKELTON: The committee will come to order.

Let me take this opportunity to welcome our witnesses today: our old friend, Will Taft IV -- it's certainly good to have him once again before our committee -- former deputy secretary of defense, former legal adviser to the Department of State and a very distinguished career, now a practicing attorney; Patrick Philbin, former associate deputy attorney general; Neal Katyal -- did I pronounce it correctly? Got it -- professor of law, Georgetown Law School at Georgetown University; Elisa Massimino -- do I pronounce it correctly? Good -- director of the Washington, D.C., office of the Human Rights First.

And thank you, each, for being with us today. This is a very important subject, and we look forward to your expertise.

Now, although the Military Commissions Act and Guantanamo are nominally the subjects of today's hearing, our discussion is about much more. The hearing tackles fundamental questions about who we are as a nation and how we treat those who are charged with threatening our security.

Today's hearing was meant to be the second in a series. Regrettably, yesterday's hearing with the principal deputy general counsel of the Department of Defense and the chief defense counsel of the Military Commissions was postponed, because of the ongoing legal proceedings at Guantanamo.

We're considering these issues with a great deal of seriousness and with a range of perspectives, because the questions before us are, frankly, complex and very important. They do not lend themselves to simple answers. An example of this is the Military Commissions Act.

Last year, when Congress passed the law, I argued that the most important task before Congress was to design a system that could withstand legal scrutiny and would be found to be constitutional for that reason.

I proposed that we expedite the ability of the courts to review the constitutionality of various provisions of the bill, which I find to be legally suspect. There are at least seven potential constitutional challenges.

First, it seems clear to me and many others that the act may be unconstitutionally stripping the federal courts of jurisdiction over habeas cases.

Relatedly, the act may violate the Exceptions Clause under Article III of the Constitution by restricting the Supreme Court's review.

Third, it is questionable whether the Supreme Court would uphold a system that purports to make the president the final arbiter of the Geneva Conventions.

Fourth, provisions regarding coerced testimony may be challenged under our Constitution.

Fifth, the act contains very lenient hearsay rules, which rub up against the right of the accused to confront witnesses.

And sixth, the act may be challenged on equal protection and other constitutional grounds on how it discriminates against the detainees for being aliens.

And last, Article I of the Constitution prohibits ex post facto laws, and that's what this act may have created.

Providing for the expedited review of the Supreme Court of these seven issues was, and continues to be, important. If the justices find that the Military Commissions Act includes constitutional infirmities and the government has already secured convictions, it's likely that known terrorists could receive a "get out of jail free" card or have death penalties reversed.

Permitting hardened terrorists to escape jail time, because we didn't do our full job in Congress to fix the Military Commissions Act would be a travesty of justice.

The bottom line is that we must prosecute those who are terrorists with the full force of the law, but we must also make sure that the convictions stick. Certainty of convictions must go hand-in- hand with tough prosecutions.

And I well know of which I speak, having been a prosecuting attorney a good number of years ago, that the certainty of convictions and that they stand up on appeal is so very important.

This brings me to the future of Guantanamo -- an issue on which, if we act with haste, we will do so at our peril. I have no doubt that Guantanamo has become a lightning rod for criticism of American detainee policy and has undermined both our moral authority and our ability to rally necessary support for policies abroad.

Secretary Gates, Secretary Rice, Senator McCain and former Secretary Powell, among many others, reportedly all have pointed to the hole that Guantanamo continues to burn in the international reputation of our country. The morale of our troops overseas and their level of security rely upon how they are perceived in other countries.

There are some in Guantanamo who might well be released or remanded to a home or a third country. Yet there is a core group of hardened terrorists who must be detained, tried and confined for a long time.

Determining where we will lock up these hard-core detainees over the long run, so as to ensure they cannot return to the battlefield, is the question before us.

Some have proposed maintaining Guantanamo's military supermax prison for these extremely dangerous individuals. Others recommend federal correctional facilities like ADX at Florence in Colorado.

This is a hard call, and I look to the witnesses to help inform this committee to grapple with these very difficult issues.

Now I turn to my good friend, our distinguished ranking member and former chairman, Duncan Hunter.

Mr. Hunter?

HUNTER: Mr. Chairman, thank you for holding this hearing, and I look forward to discussing this issue with our witnesses.

Mr. Chairman, I think that we got it right when we put this bill together that established what I call the "terrorist tribunals."

We went through a great deal of analysis. We interacted with military lawyers, with constitutional scholars, and we put together a bill that enables us to effectively prosecute people in this new war, in this long war.

And I just wanted to say, to put my marker out there, stating that we got it right when we put this thing together. It's now been upheld in several -- this military tribunal system has been upheld now in two court decisions, one in the district court and one in the Court of Appeals, especially with respect to the constitutionality of the law and with respect to the habeas corpus -- to the denial of habeas corpus to these terrorists.

There's a second issue here, which is closing down Guantanamo Bay.

And, Mr. Chairman, I think we're going in exactly the wrong direction. It's right to keep Guantanamo open.

There's not a single member of this committee who hasn't had 10 times the people killed or murdered in their own prisons, in their own states, as have been murdered in Guantanamo.

And the reason for that is, no one's been murdered in Guantanamo.

They've unfortunately had a couple of suicides, but there have been no murders in Guantanamo.

Guantanamo has been open to hundreds and hundreds of visits by international visitors, by congressmen and congresswomen from the U.S. House and from the U.S. Senate. And the idea that we're going to close down Guantanamo, because the image, the myth is that Guantanamo is a bad place, does nothing but confirm the fiction of the bad image. And you've spoken about the image and referred to that several times in your opening statement.

When it's not the truth, don't confirm it, and don't concede it as being the truth, because if we close down Guantanamo and we move these hardened terrorists to these locations that have been offered, which involves dozens of American military communities and dozens of American towns and counties across this country, we do several various dangerous things.

Number one, you arguably give more rights to these terrorists once they're on American soil. And number two, I think there's a real damage and a real danger in bringing in people that know how to make car bombs, who are experts with explosives, and putting them in any proximity with American prisoners and American criminals, who might pick up that capability.

The idea that we're going to take these hardened terrorists, who are very effective in killing people, and move them to communities throughout the United States, I think is very ill-founded.

So, Mr. Chairman, you know, we put this Military Commissions Act together to ensure that the U.S. was able to detain, interrogate and try terrorists and to do it in a manner that was consistent with the Constitution and the international laws of war.

And, you know, we've had this -- it appears to me that the Democrat leadership does not want to take "yes" for an answer. We did not get a bad decision from the Court of Appeals or from the initial D.C. court that ruled on the constitutionality. That was a D.C. Circuit Court. We didn't get a bad decision from them.

The District of Columbia ruled that this act is indeed constitutional with respect to the habeas corpus issue. And that was a major issue that was brought up by a number of Democrat leaders on the House floor.

Not long after that, the D.C. Circuit Court of Appeals held that the act conforms with the Constitution and that the detainees in Guantanamo do not have a constitutional right to habeas corpus.

And I might add that this right to habeas corpus that many would give to these terrorists, including people like Khalid Sheikh Mohammed, who admitted a few days ago to being the mastermind, the main planner, on the attacks on New York on 9/11 and the attacks on the Pentagon and the tragedy in Pennsylvania on 9/11. He admitted to doing that, taking part in killing thousands of Americans.

And the idea that we are stretching to give him more constitutional rights, more rights than American service men and women who wear the uniform of the United States, I think is going in exactly the wrong direction.

I think these two decisions that we've seen now, with respect to the D.C. Circuit Court and the U.S. District Court for the District of Columbia, have been very encouraging. They validated what we did. They didn't say you did it wrong.

And I know lots of people predicted on the House floor, that when we got to the U.S. District Court for the District of Columbia, we'd get a bad decision. Well, we didn't get a bad decision. We got a decision that said, yes, indeed, what you've done is constitutional, and especially with respect to the habeas corpus issue.

And then when it went up to the D.C. Circuit Court of Appeals, they didn't say Congress messed up. They said, you did it right. And they found that the detainees in Guantanamo do not have a constitutional right to habeas corpus.

And I would note that the procedures that are provided in the CSRTs track, they track very, very closely with Army Regulation 190-8 for enemy prisoners of war. And in some ways, they exceed those found in A.R. 190-8.

And I would like to submit that for the record, Mr. Chairman.

SKELTON: Without objection.

HUNTER: So, I caution against this committee and this Congress taking any action amending the MCA, because it will have the effect of delaying or invalidating the commissions that are currently underway.

And let me just end with one simple point.

Our terrorist detainee policy was constructed to address a new type of enemy and a new type of war. We've used the international laws of war and the Uniform Code of Military Justice as guideposts in crafting this new policy, because fundamentally, it's a war policy.

And moving the detainees from Guantanamo or amending the MCA will have the net effect of holding up the execution of our global war on terrorism detainee policy.

Now, some folks would like this result. They would prefer to see terrorists tried under the criminal justice system.

And I want to remind you, Mr. Chairman, we brought in a JAG officer who had tried hundreds of cases. And we asked him if we took the Uniform Code of Military Justice and applied it.

The colonel sat there where Mr. Taft is sitting today, and he said, if we applied that -- and I said, when would Miranda rights attach? That's the time when you have a right to have a lawyer before you say anything else.

And he said -- and I gave him the scenario. I said, if you had an American soldier in Afghanistan, and he saw somebody shoot at him with an AK-47 and he captured that person and threw him over the hood of a Humvee to search him, when would the rights to Miranda attach, if you went under the UCMJ?

The JAG officer who testified to us said, they would attach at that point. That means you would have to have lawyers on the battlefield -- according to him -- to give Miranda rights. In his professional opinion, at that point you would have to give them Miranda rights. So, I am just reminded of his testimony.

And I know, Mr. Chairman, some people say, well, we think that JAG officer was wrong. And I think that shows precisely the problem with trying to attach the UCMJ or use the UCMJ, to go back and use that as the blueprint for this new law.

Now, you know, we tried the terrorists who were responsible for the first World Trade Center bombing. We all know that. We found that the discovery rules of the criminal justice system actually gave the defense access to information under those trials that found their way to the Al Qaida camps in Afghanistan.

Military commissions are crucial, because they're crafted for the conduct of war by providing procedures flexible enough to account for the constraints and conditions of the battlefield. And remember, we have American troops on that battlefield.

So, if we go back to what we had before the first World Trade Center bombing, where under the rules of discovery we found out -- and this was undeniable, uncontested -- that information that should not have gotten out, under the rules of discovery it got to defense lawyers. It ended up going back and being taken under the possession of the Al Qaida on the battlefield.

Remember this, Mr. Chairman, we have troops still in those theaters, still fighting. And their safety depends on that information being closely held.

So, the idea that we're going to afford new discovery procedures to terrorists, so that we can feel that somehow we have given them modicum or some shade of constitutional rights, that will accrue to the detriment of the young men and women whose lives on the battlefield today depend largely on security on that kind of information.

So, let me just close with a statement that President Lincoln made when our country faced another daunting challenge. He said this.

He said, "The dogmas of the quiet past are inadequate to the stormy present."

I think that's very applicable to today.

"As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country."

That was Lincoln's second annual message to Congress, December 1, 1862.

Mr. Chairman, let's just remember this. We were attacked on 9/11. We discovered we're in a new type of war. It's a war which often doesn't know boundary lines between nations. It's a war in which most of our enemies don't wear uniforms. And we had to come up with a new system of prosecution to handle the people that were captured in this new war.

Those people didn't wear uniforms. And we found that the UCMJ could not apply to them totally. We also found, as we found with the prosecution of the World Trade Center bombers on the first attack, that you couldn't give them all the rights that American citizens had.

So we gave them an array of rights. And we went through Nuremberg. And we went through Rwanda.

And we went through these other tribunals, and we took a large array of defendants' rights, and we gave them to these people who murdered thousands of Americans -- people like Osama bin Laden's bodyguards who were held at Guantanamo, people like Khalid Sheikh Mohammed, who admitted to participating in the killing of thousands of Americans and said, essentially, "I'll do it again, if I get the opportunity."

And the idea that for some wrong-headed notion, some idea that we have to liberalize every single thing that we do in this country, we are going to take a body of law -- which now is withstanding court scrutiny and which the courts, these two courts that have ruled on it and said, yes, it is constitutional, and, no, they don't have habeas corpus rights, which no American soldiers have -- somehow, we feel that we have to do two things.

First, we have to close down Guantanamo, which gives a higher level of health care than most HMOs in America, which serves a better menu than most American families have on a weekly basis, which interrupts proceedings five times a day to broadcast over public broadcast system the prayer for the prisoners, which allows them to have exercise, which allows them to have games, which allows them to have entertainment, and which to-date has seen not one single murder of a prisoner -- and there's not one member of this body, in this committee or in the House of Representatives who can claim that even about their county jails, much less their state prisons, where hundreds of people are murdered on an annual basis.

The idea that we're going to close down Guantanamo, because you've had some complaints about square footage and because you've had all that old footage of the old camp that had concertina wire on top of the walls -- the idea that we're going to close that down and confirm the myth that Americans mistreat prisoners is one of the worst things we could do.

I think it's also a disservice to the men and women that wear the uniform of the United States. These people risk their lives capturing these people. We now have been treating them very fairly.

We've put in place a good system of justice -- emphasis on justice -- cross-examination, right to a lawyer, right not to testify on the stand. All the things that -- we gave them everything that they had in the tribunals at Nuremberg and Rwanda and more.

And we find that somehow we second-guess ourselves and say that we've done the wrong thing, and reverse this system -- which at least the first two court decisions have validated -- is, I think, wrong- headed.

So, Mr. Chairman, don't put me down as undecided on this. I strongly oppose closing Guantanamo. And I strongly oppose opening up this criminal justice system that we labored long and hard. And your staff worked on this and my staff worked on it. We used lots of outside experts. We collaborated with the Senate on this thing.

I think we put together a sound body of law. And I think we owe it to the men and women who risked their lives to capture these people to go forward with their prosecution. And the way we do that is by not undoing the system at this point.

Thank you, Mr. Chairman.

SKELTON: I thank the gentleman.

HUNTER: And I'd like to put my full statement in the record, Mr. Chairman.

SKELTON: Without objection.

I wish to point out to the committee -- and you should know this, if you don't already -- before we call on our witnesses that on February the 20th, this year, in a 3-to-2 panel decision -- not en banc, but a panel decision -- the federal court of appeals for the District of Columbia decided a case known as Boumediene v. Bush.

In that case, it was a consolidation of several habeas corpus cases, which had been filed by foreign nationals who had been captured abroad and were being held at Guantanamo.

The appellate court, the panel held that the law that was passed deprived the federal courts of jurisdiction over habeas corpus, and that Guantanamo detainees had no constitutional right to habeas corpus.

However, the Court of Appeals did not reach the merits of the detainees' designation as enemy combatants. And by their combatant status review tribunals.

This has been appealed to the United States Supreme Court. Being a country lawyer, I question why it didn't go en banc. However, as I understand it, both sides of the case wanted to go straight to the Supreme Court, and it was not necessary to go to the Court of Appeals en banc, and is now on its way to the Supreme Court.

And, of course, it would be interesting to see that particular decision when it is handed down.

Really appreciate our witnesses coming -- a rare group of first class talent -- and we appreciate your doing so.

We call on our friend, Will Taft, first.

Secretary Taft?

TAFT: Thank you, Mr. Chairman.

I am pleased to appear in response to your invitation to discuss the future of the detention facility at Guantanamo Bay and the Military Commissions Act.

As you know, I have testified before the committee many times, but I don't think I've been here since 1988, when I left the Pentagon, almost 20 years ago.

It's good to be back, and I see some faces -- I miss some faces that were here then, but I'm glad to see at least a few familiar ones, and, of course, many new ones, or if not faces, at least name plates that are new.

Regarding the future of the detention facility at Guantanamo Bay, I understand that most people would like to close it and transfer the persons we have captured in our conflict with Al Qaida and the Taliban regime -- who are there -- to other facilities.

I share this view.

The facility has acquired a notorious reputation around the world in its continued use as a focal point for criticism of our foreign policy and a drag on our ability to get important things done.

Its notoriety arises, I believe, from two causes.

First, detainees have been abused at the facility, and interrogation methods used there have not complied with our international obligations.

And second, there is an impression that the facility was established in Guantanamo in order to deprive the persons captured of access to our courts and other rights that they would have, if they were being held at a facility in the United States.

Regarding this last point, in my view, persons captured in the conflict with Al Qaida and the Taliban should not be treated differently, because they are in custody at Guantanamo, from the way they would be treated if they were in custody in the United States.

The decision, then, about whether the facility is to be closed should not be based on how this may affect the legal rights of the detainees. It should not affect them.

Political and logistical factors should determine our course. Logistically, I imagine, Guantanamo still has a number of advantages over other options.

It seems doubtful, however, that these outweigh the political costs of continuing its operation. At some point, a brand becomes so toxic, that no amount of Madison Avenue talent can rehabilitate its image.

What the Reverend Jim Jones did for Kool-Aid and the British penal system did for Van Diemen's Land, abuse of the detainees -- whether there or at Abu Ghraib or elsewhere -- seems to have done for Guantanamo.

My recommendation would be to cut our losses.

Regarding the Military Commissions Act, I have just three points.

First, it was a mistake for Congress to preclude judicial review of the lawfulness of detaining the persons we have captured in the conflict with Al Qaida and the Taliban. As I understand it, convicted detainees may obtain such review after their criminal cases are concluded, but persons who are not charged with crimes do not have access to the courts to challenge their detention.

The benefits of this approach escape me.

The Supreme Court has on two occasions affirmed the lawfulness of detaining persons captured in the conflict with Al Qaida and the Taliban, as long as they pose a threat to the United States. This is black letter law of war.

Prior to the enactment of the Military Commissions Act, consistent with this principle, no court had ordered the release of any of the detainees, nor will they do so, as long as it is shown that the detainee poses a threat.

Currently, this determination is made by the military. Having it endorsed by a court would greatly enhance its credibility and be consistent with our legal tradition. And I have no doubt it would be endorsed by a court -- any court.

My two other points relating to the Military Commissions Act concern the rules of evidence in the trials.

I do not think either hearsay evidence or coerced testimony should be used in these trials. The Sixth Amendment establishes a defendant's right to confront witnesses in criminal trials.

Use of hearsay evidence is inconsistent with this right. The hearsay witness is not under oath, on the record or available for cross-examination, so his testimony is presumed automatically to be unreliable.

Coerced testimony is likewise inherently unreliable. Courts normally exclude such testimony, not only because it's unreliable, but also in order to discourage the use of coercion by the authorities. Both rationales are relevant here.

If I thought for a moment that Khalid Sheikh Mohammed or other detainees like him might be released as a result of such changes, I wouldn't recommend them. What Khalid Sheikh Mohammed says he has done to Daniel Pearl and in planning the 9/11 attacks enrages all Americans and all normal people around the world.

But because he is being held consistent with the law of war, he will not be released. And it's very important when we are enraged, when our blood boils, that we most need to adhere to the rule of law and not change it.

And it's in that spirit that I would recommend these changes to the rules of evidence in the act.

Thank you, Mr. Chairman. I'm glad to have this opportunity to appear before your committee. I ask that my full statement be included in the record, and I look forward to answering your questions.

SKELTON: Without objection, Mr. Taft's statement will be put in the record, and we thank you for your testimony.

Mr. Philbin, please?

PHILBIN: Thank you, Mr. Chairman, Ranking Member Hunter and members of the committee, I appreciate the opportunity to address the matters before the committee today.

Both the Military Commissions Act of 2006, or the MCA, and the continued use of the U.S. Naval Base at Guantanamo Bay, Cuba, as a detention facility are exceedingly important issues for the nation's conduct of the continuing armed conflict with Al Qaida and associated terrorist forces.

In this brief opening statement, I'd like to emphasize two points.

First, in the MCA, Congress has already crafted a set of procedures for military commissions that is both unprecedented in its detail and fully adequate to satisfy all legal requirements, including those specified by the Supreme Court in Hamdan v. Rumsfeld.

Military commissions are finally poised to proceed more than five years after the president originally issued the order providing for their creation. At this point, changes to the MCA should be made, only if they are required either by a compelling legal need to remedy some constitutional infirmity or by an imperative operational need of the military.

In my view, the changes some have proposed are not justified by either necessity. Instead, they would only add confusion to a workable system and further delay the day when military commissions become fully operational.

In particular, there is no constitutional need to provide habeas corpus jurisdiction for petitions from detainees at Guantanamo. Aliens held at Guantanamo Bay have no constitutional right to habeas corpus.

And in any event, the MCA provides an adequate substitute for habeas by providing a review in the United States Court of Appeals for the D.C. Circuit for the decisions of both combatant status review tribunals and military commissions.

That means that both the determination to detain an individual as an enemy combatant (inaudible) final decision of any military commission on a war crime charge are subject to review in a civilian Article 3 court.

And I think I disagree with Mr. Taft on this point. My understanding under the law is that, through the CSRT process there is review in the D.C. Circuit Court of Appeals, so that determination to detain is reviewed in an Article 3 court.

Reestablishing habeas jurisdiction at this point would only add a confusing, parallel avenue of judicial review that would sacrifice the benefits of the orderly procedure Congress has established in the MCA. Moreover, it would do so without providing any additional substantive rights for the detainees.

Habeas provides an avenue for access to the courts, but it does not supply the substantive law for the court to apply. So, reestablishing habeas jurisdiction would just entail a new round of wasteful litigation to determine exactly how the habeas proceedings should fit in with the other review proceedings, and it would not actually provide additional substantive rights to the detainees.

Second, the continued use of Guantanamo Bay undeniably presents a very difficult question for the United States.

There can be no doubt that Guantanamo has become a lightning rod for criticism in the international community, and maintaining good relations with our allies and securing their continuing support, as well as securing the goodwill of other nations more broadly, is an important aspect of winning the conflict with Al Qaida.

When I examine the alternatives, however, I come to the conclusion that Guantanamo remains the only practical facility for its mission, based on three considerations.

First, I believe the government has a duty to the American people to continue to detain those enemy combatants who would pose a threat to the United States if released.

Second, the only alternative to holding enemy combatants at Guantanamo would be bringing them onto U.S. soil. As a practical matter, that would raise a serious security concern for whatever facility was constructed to house the detainees, and for the vicinity -- the American community around that facility.

As a legal matter, it would spark a completely new round of litigation, because once the detainees are on U.S. soil, they likely will be held to have constitutional rights. The unprecedented procedures that are provided for the detainees now, I think may well satisfy those rights, but it would take years of additional litigation to determine that.

Third and finally, I am concerned that simply moving the detainees to the United States will not achieve one of the primary stated objectives of closing Guantanamo; namely, silencing the course of international criticism and repairing strained relations with foreign partners.

International criticism does not depend primarily on the place where enemy combatants are detained. Instead, at bottom, it rejects the fundamental legal paradigm under which the United States asserts the right to detain individuals as enemy combatants and, hence, without charge, in an armed conflict with Al Qaida.

Unless the United States is prepared to abandon the entire law of war framework governing the conflict with Al Qaida -- which I strongly believe it should not do -- I fear that simply moving the detainees to the U.S. is likely to accomplish little in appeasing critics in the international community.

Thank you, Mr. Chairman, for the opportunity to address the committee. I would like to have my full written statement submitted for the record, and I would be happy to address any questions the committee may have.

SKELTON: Thank you. Your statement will be put in the record in toto, as well as all four witnesses.

Mr. Katyal?

Do I say it right?

KATYAL: That's perfect.

SKELTON: Got it.

KATYAL: Thank you, Chairman Skelton and Ranking Member Hunter for inviting me.

I want to begin by thanking the chairman's staff, particularly Ms. Conaton, Ms. Unmacht and Mr. Oostburg. They are models of public servants, e-mailing both sides during the 2005 DTA debates and 2006 MCA debates -- frankly, at all hours of the night -- just trying to learn about these issues.

On November 28, 2001, I testified in the Senate about the president's then-two-week-old military commission plan. I warned that Congress, not the president, must set them up, or the result would be no convictions and a court decision striking those tribunals down.

One thousand nine hundred and forty-seven days have elapsed since that time. Not a single trial has taken place during that time. No one was even indicted for over two years. And last year, the Supreme Court invalidated that scheme.

I did not come here to gloat. The decision the file the Hamdan lawsuit was the hardest one I've ever faced.

I previously served as national security adviser at the Justice Department, and my academic work extols the idea of the unitary executive, strong president theory. My work in criminal law centers on the need for tough laws to benefit prosecutors.

Yet today, forward-looking members in Congress have foreseen the results of the MCA: a new court decision that strikes this tribunal system down and more legislation driven by reaction, not deliberation.

The committee has asked us here today to help avoid this new round of the same game. Responsibility, not reaction, is required.

I want to make two points.

First, the reported views of Secretaries Gates and Rice that the commission trials be moved to the United States are a crucial first step, perhaps more important than repealing the MCA's habeas text.

Trials are gripping, dramatic and easy to follow. They are unlike detention, which involves little drama and no grand moment of resolution. The trials at Guantanamo will be watched by the world, and we cannot forget that, in them, our nation -- and not simply the detainees -- face judgment.

Yet the administration clings to the shortsighted theory that Guantanamo is a legal black hole where none of the protections of our great Constitution apply.

This view will corrupt the trials and undermine America's image -- what Secretary Taft referred to as the "brand" of America. And these views must be replaced with one that reflects America's traditions and values.

Second, Congress should repeal the MCA and use our proud tradition of courts-martial.

Here, I think, I just want to focus on one point, a basic point, about equality.

When I first met Mr. Hamdan at Guantanamo in 2004, he asked me a simple question. He said, "Why are you doing this? Why are you defending me"? He said to me, "Your last client was Al Gore. What are you doing here"?

And I told him that my parents came here from India with $8 in their pockets, and they chose this land, because they knew they could arrive on our shores and be treated fairly.

There's no nation on Earth, I told him, that would treat me, the son of immigrants, and give me the opportunities that I had. I told him I was deeply patriotic for these reasons.

And when I read the president's military trial order, for the first time I felt that vision of America -- my parents' vision -- was being violated.

Remember our history. We are a land of immigrants. The Declaration of Independence lists as its first self-evident truth that all men are created equal.

This premise is the heart of what Abraham Lincoln did in the Civil War. It's the heart of the Equal Protection Clause, which gives all persons constitutional rights, not simply all citizens.

When you think about the MCA, think about that. For the first time, this body set up a trial system that applies only to the five billion people around the world outside the United States and the 12 million green card holders. A United States citizen gets the Cadillac version of justice, the foreigner gets the beat-up Chevy version, a stripped-down Guantanamo trial.

Yet, in all past military commissions in this nation's history, foreigners and United States citizens were brought before them equally.

As Justice Scalia has warned, the genius of the Equal Protection Clause is that it prevents Congress from ducking hard choices by limiting the rights of the powerless. It is not surprising the MCA was introduced on September 6th and passes this body a short three weeks later -- in record time.

It passed not because the act was written by Plato. It passed because the only people the act affected were the powerless, people who have literally no vote in the process, the five billion people in the world and the 12 million green card holders.

Ultimately, the MCA will be struck down for this and other reasons.

In summary, I ask you to realize the power that lies in your hands, the power to ensure the safety of our troops and the dignity of the values they defend.

I applaud Secretaries Gates and Rice and all others who recognize the only thing worse than making a mistake is failing to correct it when you have the chance.

Thank you.

SKELTON: Thank you. Thank you very much.

Ms. Massimino?

MASSIMINO: "Massimino."

SKELTON: Try it again. Did I say it right?

MASSIMINO: "Massimino."

SKELTON: Got it.

MASSIMINO: Thank you, Mr. Chairman.

SKELTON: Please.

MASSIMINO: Thank you very much. And thank you for inviting me here today.

These are very difficult issues of great urgency and import for our nation. And as you noted, Mr. Chairman, in your opening statement, while this hearing is framed as being about Guantanamo and the Military Commissions Act, it is part of a larger debate about U.S. counterterrorism policy.

I strongly agree with that view.

And I believe that many of the missteps that we have made in interrogation policy, in military commissions trials have resulted from a failure to view those issues as part of the broader counterterrorism policy. And that is the main point, really, that I want to bring home today.

The policy of detention, interrogation and trial and of terror suspects at Guantanamo, in our view, has been a failure. And it is up to you, to Congress, to fix it.

The decision to hold detainees at Guantanamo in the first place was driven, at least in part, by a desire on the part of the administration to insulate U.S. actions taken there -- detention, interrogation and trials -- from judicial scrutiny, and even from the realm of law itself.

Early on, one administration official, you might recall, called Guantanamo the legal equivalent of outer space.

That goal, to create a law-free zone in which certain people are considered beneath the law, was illegitimate and unworthy of this nation, and any policy bent on achieving it was bound to fail.

The policy at Guantanamo has failed in several important respects.

First, and most obviously, it has failed as a legal matter. The Supreme Court has rejected the government's detention, interrogation and trial policies at Guantanamo every time it has examined them, and it likely will do so again.

Of course, I don't need to tell you about -- and you've heard about it already today -- how many people, including Secretary Gates, Secretary Rice, Secretary Powell, and many, many of the United States' closest allies have urged the closing of Guantanamo.

And of course, while it's important to take into consideration the views of our closest allies, nobody argues that the U.S. ought to change its policy because other countries don't like it.

The questions, the most important questions that you all ought to be asking about the current policy now is, is it smart, is it working, does it serve our overall objective and does it comport with our laws and values. And I would say that Guantanamo fails all of those tests.

The military commissions have failed to hold terrorists accountable for their most serious crimes, as you've heard. And in addition, the view of Guantanamo as a legal black hole led it to become the laboratory for a policy of calculated cruelty that later migrated to Iraq and was revealed to the world in the photographs from Abu Ghraib.

Whatever information was gained through those policies, few dispute now that they aided jihadist recruitment and they did immense damage to the honor of the United States and its reputation -- undermining, as Secretary Gates recently argued, the war effort itself.

But perhaps most importantly, from a security perspective, the policy at Guantanamo, which treats terrorists as combatants in a war against the United States, but rejects application of the laws of war, has had the doubly pernicious effects of degrading the laws of war while conferring on suspected terrorists the elevated status of combatants.

By taking the strategic metaphor of war, literally, we have unwittingly ceded an operational and rhetorical advantage to Al Qaida, allowing them to project themselves to the world -- and to potential recruits and a broader audience in the Middle East -- as warriors rather than criminals.

Nothing brought that home more than the transcript that we all read from Khalid Sheikh Mohammed's combatant status review tribunal a couple of weeks ago at Guantanamo.

After ticking off an itemized list of 30-plus crimes that he was involved in and committed, including 9/11 an the hideous murder of Daniel Pearl, he addressed -- as if soldier-to-soldier -- the Navy captain that was presiding over that proceeding and said, essentially, war is hell and people get killed.

And we, by our policies of treating him as a combatant has facilitated the ability of him to frame himself in that role and to reinforce the terrorist narrative, that they are in a global war with a mighty power.

And that, I would say, is not only deeply offensive to our military, our men and women serving in uniform, but it's also operationally not smart.

I would recommend to you, if you haven't looked at it, the brand- new counterinsurgency manual that was drafted under the supervision of General David Petraeus, which really underscores the fundamental problems with that kind of approach to dealing with an enemy like Al Qaida.

And I think, once we start to view Guantanamo and the military commissions as part of that broader effort to defeat this terrorist enemy, it will help reconceptualize our entire counterterrorism policy. And that's what I would urge this committee to begin to do.

I look forward to answering your questions.

SKELTON: Thank you very much.

Let me ask some rather quick questions.

Mr. Katyal, being a law school professor, you're it for the first question.

In 1942, President Roosevelt established by executive order a tribunal that tried eight German saboteurs, six of whom were given the death penalty. The United States Supreme Court upheld the tribunal. Two received life imprisonment.

I happen to know a little bit about this. One of the two that received life imprisonment was represented by a lawyer from my home town named Colonel Carl Ristine, who did a first-class representation of Mr. Dasch in that tribunal.

Can we -- if you know -- tell tribunal executive order and the initial executive order by this president regarding the present tribunal? If you know.

KATYAL: Thank you for the question. And Colonel Ristine did a fantastic job. I've read the transcript very closely and studied it.

Now, the difference between those 1942 trials and these ones are quite marked, both in its procedures and in the way they have ultimately unfolded. Those were quick trials that happened right away.

They applied the same rules to foreigners and United States citizens.

This trial system, under the Military Commissions Act, applies a completely different set of rules to one group of people -- the five billion people and the 12 million green card holders -- than it does to United States citizens.

We've never done that before. We've had military commissions since 1847. They've always applied the same rules to foreigners and American citizens.

The MCA, for the first time, does something different.

When we passed the Equal Protection Clause in 1866, when this body ratified it, one of its objectives was equalizing punishment between aliens and citizens. This Congress passed two laws that implemented the Fourteenth Amendment, that made it a federal crime to give aliens different punishments than to give Americans.

Yet, the MCA does precisely that. And for that reason, Chairman Skelton, I think the MCA will ultimately fail the test that you laid down last year during the MCA debates, which is, will this system that this body sets up survive the Supreme Court review process ultimately?

And I think the answer is "no." This is a newfangled trial system that enshrines a cardinal discrimination into the laws of this body. And I think it cannot withstand Supreme Court review.

And whenever this case gets to the Supreme Court, whether it's this year or, as the administration hopes, in five or 10 years, it will get struck down, and all these convictions will have to be overturned.

And then where will we be? We'll be where we are right, five years later and counting, with not a single person convicted for these 9/11 attacks in the military commission system.

SKELTON: Thank you, sir.

The question often put to me -- and I'll ask each of you your judgment -- should Guantanamo facility be shut down, what do you do with the detainees?

Mr. Taft?

TAFT: Well, sir, I think that the detainees are on their way to being treated and the numbers diminished, even as we speak.

I gather that some 400 or more have already been returned to their countries. There are more going each month.

My guess is that the facilities that are available in the United States could easily accommodate whatever number of detainees remain in Guantanamo.

There are many stockades and brigs available in the country, and I think that they could be used.

It's obviously an important thing to be sure that these people are in secure places. But I have not -- I'm not familiar with any difficulties that the Army or the Navy have had in keeping people locked up in the United States in their facilities.

SKELTON: Thank you.

Mr. Philbin?

PHILBIN: I think that's a difficult question, Mr. Chairman. Where would they go?

From the time that I was in government, it was -- you know, it's been considered for many years. Is there an alternative to Guantanamo? And if so, what is it? Where would they go?

And it's my understanding that the military has serious concerns with having enough high security places where they could put over 300 people from Guantanamo. You create a security concern for that facility and for the community around that facility.

No place in the United States is as remote and as secure as Guantanamo.

And in addition, you have the options. You have options of either splitting them up amongst a whole bunch of facilities, in which case you've got to increase the security at all of those facilities, or building some new facility that's secure enough to house all of them.

In addition to that, you have to take into consideration the intelligence mission that goes on at Guantanamo. Guantanamo continues today to receive new detainees.

Just this week someone was transferred who was captured in Kenya, who is considered to have significant operational intelligence about Al Qaida's East African network, was transferred to Guantanamo. There's going to be an intelligence mission there.

And part of the advantage of Guantanamo is that all the detainees are in one spot. So, if, in interrogating one detainee, you get some information that seems relevant to another or that might play into something that someone else has said, interrogators on the team working on that can go back around to the other detainee.

If you have them spread out among different facilities all over the country, that becomes more difficult. Those are operational concerns that I think that the military would be better able to address.

But I think there are a lot of difficulties, a lot of serious problems with where will you put them if they weren't at Guantanamo.

Mr. Chairman, if I could, just to add something briefly to your question to Professor Katyal.

In comparing the president's initial, November 13, 2001, order to President Roosevelt's order -- just specifically comparing those two -- President Bush's order very closely parallels FDR's order. It was, in fact, modeled after it, and intentionally so.

And the initial military commission system then set up actually, because the military supplemented the president's order with Military Commission Order No. 1, and other procedures, provided a great deal more procedures than were provided in the trials for those in Ex Parte Quirin.

So, the initial presidential order was similar, but then there were additional procedures added to it.

SKELTON: Thank you.

I'm not sure who argued the case on behalf of the German convicted saboteurs, whether Colonel Ristine did or not, before the Supreme Court. But it's interesting to note that the Supreme Court very quickly held that to be proper and constitutional.

Mr. Katyal?

KATYAL: Colonel Royall argued the case on behalf of the saboteurs, chairman, and it was upheld, precisely because it applied equally to foreigners and United States citizens.

This order -- President Bush's order -- explicitly deviated from FDR's by only applying it to foreigners.

With respect to what we do with Guantanamo, I would do two things. First, I would move the small number of anticipated trials to the United States.

That's a small number of detainees. Right now it's only three. There are Pentagon projections it might go as high as 80.

Trials are high-visibility events, unlike detention. So, the eyes of the world are going to be watching these trials. And right now they're taking place under a legal theory of the administration that the Constitution doesn't apply at all -- no part of it -- to Guantanamo.

That's one reason why you have so much outrage internationally at what's going on at Guantanamo. Within these trials people may be put to death.

And the idea that the United States is going to put them to death with no constitutional protections at all -- literally none -- I think will undermine the image of the United States and undermine our Constitution.

Second, with respect to the larger group of detainees, I think Mr. Philbin raises some very good security points. I still think that a military base may be an appropriate place, but it should be the subject of inquiry by this committee.

Whatever happens, though, I think a national security court is something that this body should consider authorizing. This unites people on both the political left and the right, people like Andrew McCarthy of the "National Review," people like myself, who are identified more on the Democratic side of the aisle.

And it's a way to try and think through detention issues in the form of a specialized court that hears the cases and evaluates them fairly.

SKELTON: Ms. Massimino?

MASSIMINO: Thank you.

Your question about what to do if we were to close Guantanamo is a very important, practical, operational question, and I appreciate it. And there's no question that that is going to be difficult.

As with all of these questions, there is going to have to be a balancing, whether the liabilities of continuing to hold people at Guantanamo outweigh the clear risks, as Mr. Philbin outlined, the security risks and others, of bringing them here.

But the administration is now working, I think, as hard as it can to convince other governments to take many of the detainees at Guantanamo. As Secretary Taft said, they are trying very hard to unload people.

I think -- I believe that U.S. allies, particularly the Europeans, who have called so loudly for the closing of Guantanamo, ought to be doing more to help the U.S. The U.S. may have climbed into this box by itself, but it is the responsibility of all of our allies to help get out of that.

And I think that that would be made easier, were we to bring the remaining detainees from Guantanamo to military installations in the United States.

If we were to do that, I think that would indicate to the Europeans, in particular, that we're not afraid of that, and that the ones that we've determined are no longer of a danger to the United States should be sent elsewhere.

SKELTON: Thank you.

Before I ask my friend, Mr. Hunter, to ask questions, I remind the committee members that we are under the five-minute rule.

Mr. Hunter?

HUNTER: Thank you, Mr. Chairman.

Mr. Katyal, you are Mr. Hamdan's lawyer, are you not?


HUNTER: OK. What new rights will attach to Mr. Hamdan in your opinion, in your legal opinion, if he's moved to the United States?

KATYAL: In my opinion, none. That is because, I think ultimately, the Supreme Court will hold, as it's already hinted, that Guantanamo is, for all practical purposes, United States soil.

The relevant test is the Supreme Court's case in 1990, in a case called Verdugo-Urquidez, which says that, basically, when you are dealing with territory of the United States in which the United States has absolute control, the fundamental rights of the Constitution apply.

The Supreme Court in 2004, in Rasul v. Bush, said that Guantanamo -- unlike, say, Iraq or Afghanistan or France or Germany -- is a place in which the United States has permanent, total control over the area. And for that reason...

HUNTER: OK. So, we...


HUNTER: We've now basically separated these two issues, because you have established by your statement that we're to take it as being a valid representation of rights that attach to Guantanamo versus the United States, that the movement of prisoners from Guantanamo to the United States does not have legal impact on the rights of the defendants.

That's basically what you've said. Is that right?

KATYAL: What I'm saying, the administration takes a different view right now...

HUNTER: Well, I understand.


HUNTER: But I'm just asking you for your position.

KATYAL: That's right.

HUNTER: Does anybody else have a different position? Are there any of you think that there is a difference in the rights of the prisoners, of the detainees, dependent on whether they are located in Guantanamo or the United States?

Anybody have a view on that?

Mr. Philbin?

PHILBIN: Yes, Mr. Hunter. I disagree with Professor Katyal.

I think that the detainees now at Guantanamo are not on U.S. soil, that the controlling opinion is Johnson v. Eisentrager from 1950, which holds that constitutional protections, like those of the Fifth Amendment, do not apply to aliens held outside the United States, so that they do not have those constitutional protections.

Now, as a practical matter, since they have been given, through CSRTs, a procedure...

HUNTER: Pull that mike a little bit closer to you, so we can hear you a little bit better.

PHILBIN: As a practical matter, since they have been given procedures through the combatant status review tribunals, that were designed to meet the due process requirements, the Supreme Court plurality in the Hamdi case -- Hamdi v. Rumsfeld -- outlined as what would be necessary to detain a U.S. citizen in the United States as an enemy combatant.

Those procedures have been given to the detainees at Gitmo. And they have Article 3 court review with that. And given the procedures in the Military Commissions Act, and the Article 3 court review with that, I'm not sure that there would be much practical difference. But they would be able to challenge those, if brought to the United States.

But as a legal matter of their status, they would gain constitutional rights that they do not have now.

HUNTER: So, in your opinion, they would have new rights as a result of being located here, rather than being located there.


HUNTER: That's the essence of your testimony.


HUNTER: We're discussing, really, whether or not this new body of law that we've created is going to make it, all the way up through review that includes going up to the U.S. Supreme Court.

That's largely going to depend on the array of rights that we have granted, as we deliberated and wrote and wrote this bill and put it together, along with our counterparts in the Senate, whether we gave an adequate array of rights to the defendants.

For practical purposes, fairness is manifested in the rights that you give to the individuals who are tried.

Now, I've got the rights that are given to Khalid Sheikh Mohammed, and all of the other prisoners.

And I want to go over them: right to counsel; right to an impartial judge; presumption of innocence; standard of proof beyond a reasonable doubt; right to be informed of the charges as soon as practicable; right to service of charges sufficiently in advance of trial; right to reasonable continuances; right to preempt or rechallenge against members of the commission, and challenges for cause against members of the commission and the military judge; witness must testify under oath; judges, counsel and members of military commission must take oath; right to enter a plea of not guilty; right to obtain witnesses and other evidence; right to exculpatory evidence as soon as practicable; right to be present at all proceedings with the exception of certain classified evidence involving national security, preservation or safety, or preventing disruption of proceedings; right to public trial, except for national security issues or physical safety issues; right to have any findings or sentences announced as soon as determined; right against compulsory self-incrimination; right against double jeopardy; right to the defense of lack of mental responsibility; voting by members of the military commission by secret written ballot; prohibitions against unlawful command influence toward members of the commission counsel or military judges; two-thirds vote of members required for conviction; three-quarters vote required for sentences of life over 10 years; unanimous verdict required for death penalty; verbatim, authenticated record of trial; cruel or unusual punishments prohibited; treatment and discipline during confinement the same as afforded to prisoners in U.S. domestic courts; right to review a full factual record by convening authority; and right to at least two appeals, including to a federal, Article 3 appellate court.

I want to ask each of you, and let's start with Mr. Katyal, what rights in this array of rights that we have given to Khalid Sheikh Mohammed -- who has now said that he, in fact did participate in putting together the plan that killed thousands of Americans -- which rights would you give him in addition to the rights that he now has?

Because that is the body of this law, not some generalized discussion about vague statements about Guantanamo or about whether the United States has made mistakes in terms of the legal standing for the body of law that was put together in violation of Geneva Article 3, which required participation by Congress, basically, arguments that go to the structure of the law and the way the administration acted without Congress' participation.

This is the bundle of rights that every single defendant has.

Which rights, above and beyond these, would you give to the defendants, substantive rights?

Mr. Katyal?

KATYAL: Representative Hunter, I appreciate the excellent question. And I would say three things.

First, the list that you just read is the same list that the administration read about its November 13, 2001, order, that many of us warned would get struck down by the courts.

It's not simply the rights that are written on the paper, it's the fundamental way those rights are enforced.

And here, the administration says the Constitution doesn't protect the detainees at all. And if that's true, none of the laundry list of rights you've read actually give the detainees any right in court that enforces all of the things that you read.

HUNTER: Actually, Mr. Katyal, there is a difference with respect to the classification of the classified evidence to which the defendant has a right to review. Evidence upon which he is convicted, he does have a right to be present...


KATYAL: He now cannot be kicked out of the trial. That's one...

HUNTER: That is a change in what the administration has...

KATYAL: Absolutely. And it's a wonderful change. And I think many appreciate it, that...

HUNTER: So, which substantive rights, again, do you think that the prisoners should have -- the defendants should have -- that I didn't read here? Rather than simply say, this is what has gone before.

KATYAL: I think it should...

HUNTER: And Mr. Katyal, this has gone before, not only -- I mean, basic rights like the right to counsel, the right to the presumption of innocence -- those aren't things that are unique to the administration's proposal. Those are rights that are embodied in legal systems around the world, as you know.

And also, a number of them were manifested in Nuremberg, Rwanda and other military proceedings.

KATYAL: Absolutely.

HUNTER: So, if there are substantive rights that you think that your defendant should have that are not on this list, I want to know what they are. I think that's a reasonable question.

KATYAL: Absolutely. It's a great question.

It's not the rights that -- or it's not what the paper says about the rights. It's how they are enforced and implemented. And let me give you one example, Representative Hunter.

You pointed out in your list the right to obtain exculpatory evidence. That's...

HUNTER: OK. But let me stop you for one minute. I want to hear that. If you're saying these rights aren't enforced, now that's a second answer.

The first thing I want you to do is to presume that the rights that I just listed are enforceable -- are, in fact, enforceable and are defendant's rights. Are there other substantive defendant's rights that aren't on here?


HUNTER: For example, maybe saying I think that they should be -- there should be a unanimous verdict for a conviction.

KATYAL: Yes. The most important...


HUNTER: OK. What I want to hear is the substantive rights.

KATYAL: The most important substantive rights that aren't on there are the right of equality -- same treatment for citizens and aliens, which would mean court-martial systems, which would mean a procedure that we know enforces the rights, as opposed to a newfangled one, which we don't know is going to actually enforce the rights in practice.

Another one. The list you had doesn't provide a right against evidence taken under coercion, which, you know, the American courts, the Supreme Court has said, is absolutely essential to the fairness of any military tribunal system.

But here's the fundamental point...


HUNTER: OK. So, you've got two -- hold on a second. This is a careful procedure. Let's walk down this.

You say, first...


SKELTON: Just a minute. Let the gentleman answer.

Have you -- are you through answering the full question?

HUNTER: Well, I know. But I want to make sure that we get the -- that we lay this out in an orderly way.

You've got court-martial procedures. So you think under the UCMJ -- is that what you're saying?

KATYAL: That's right.

HUNTER: The UCMJ system should have been followed. And secondly, you think that evidence that is taken under coercion should be excluded.

KATYAL: That's correct.


KATYAL: And then, my fundamental point, Representative Hunter, is this. If you are convinced that these trials are fair, that's all the more reason to bring them to the United States and have the type of orderly review that this nation has always had, up to the Supreme Court. Let's test that. Let's see if these things are really fair.

Let's not have these trials in a place which the administration says is a legal black hole in which people are going to be convicted and these convictions are ultimately going to have to be undone.

HUNTER: OK, Mr. Katyal.

Let me ask -- let the other folks ask.

Are there any of the array of rights that I read -- and I'm going to give you each a copy of those. We have one -- I see one substantive right. That's the evidence under coercion should be excluded. That's Mr. Katyal's recommendation.

Ms. Massimino?


HUNTER: Have I got it right?

MASSIMINO: Yes, you do.

HUNTER: What other substantive rights would you give the defendants?

MASSIMINO: Well, I would put the one that we just discussed, that you just discussed with Mr. Katyal at the top of the list. And that is the introduction of evidence based on coercion.

I think that that alone risks undermining the fairness of the trial, even if you don't look at all of these other issues.

In a fair trial, Khalid Sheikh Mohammed would have a very difficult time raising a defense. But we are giving him a defense...

HUNTER: Now let me remind you...


MASSIMINO: ... after we fixed that problem.

HUNTER: I believe -- I believe -- and we had the rights that attached at Nuremberg -- I believe that that was not an exclusion at Nuremberg. Now, if that was, correct me.

So, you're saying that these people should have at least, in that case, more rights than attached at Nuremberg.

And I believe that they -- I don't believe that that right, the exclusion of evidence that was derived under coercion, attached at Rwanda.

So, you're saying, if, in fact that's the case, they should have additional rights beyond what those folks had in those two military tribunals.

MASSIMINO: I am saying that, yes. And I think that our own understanding of the fundamental due process rights that adhere in a fair system has evolved, and it clearly includes that right today.


Mr. Philbin?

What additional rights would you give beyond that array of rights that I just read?

PHILBIN: I would not add additional rights. But could I make two comments on what the other panelists have suggested?

HUNTER: Well, sure, just -- yes, sir -- quickly. And then we'll move on to Mr. Taft.

PHILBIN: Yes, sir.

Professor Katyal has, at a number of points, suggested that there must be equal protection, that the Equal Protection Clause here requires that citizens and aliens be treated the same.

And I don't think that that is a serious constitutional issue here.

The Supreme Court has always allowed the federal government to make distinctions between citizens and aliens, particularly non- resident aliens -- we're not talking about resident aliens here -- and has not applied it to strict scrutiny.

And the Supreme Court has said specifically, any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.

And similarly, in the Eisentrager case, the Court made clear that there was a distinction between citizens and aliens that was particularly important in wartime.

And in terms of evidence obtained by court -- and I believe you're correct, Representative Hunter, that in Rwanda and the International Criminal Tribunal for Rwanda and for Yugoslavia, the way the issue of coercion is dealt with is that, hearsay evidence may be admitted, but there is then some probe into the reliability of it, which is a similar standard to what is in the MCA today, that there is a probe into whether or not evidence is reliable.

HUNTER: Mr. Chairman, I understand we've got very little time left for this vote. If we could break here.

I think this is a really critical question, because this goes to the heart of what we wrote...


SKELTON: The gentleman will be able to resume his questions when we get back.


SKELTON: Thank the witnesses for resuming, for staying at the table.

Mr. Hunter had to break as we went over to vote.

Mr. Hunter?

HUNTER: Thank you, Mr. Chairman. And Mr. Chairman, I'd ask for unanimous consent just to distribute the list of rights that are derived from the tribunal legislation that this body passed and that is now the law.

SKELTON: Yes, without objection. May I make an inquiry? Let me ask inquiry as to where this was derived from?

HUNTER: Derived from our legislation. This is the right to counsel, right to impartial judge, et cetera.

SKELTON: Thank you. You bet.

HUNTER: Let me continue. My question simply was, of this array of rights that I read off, which of them -- what additional rights would you give to the accused terrorists, including people like Khalid Sheikh Mohammed, that aren't in the law that we passed?

And Mr. Katyal said that he would also add the exclusion of evidence that is obtained under coercion. Ms. Massimino said also she would add that right to exclude evidence obtained under coercion.

And I might note that the only way that evidence obtained under coercion can be introduced is if the judge finds -- and I'm looking at the statute -- one, the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and, two, the interests of justice would best be served by admission of the statement into evidence.

And that that is an exclusion that you're asking for, under my understanding, did not attach to the defendants at the Nuremberg trials, nor did it attach to the Rwanda trials.

And I would now ask Mr. Taft if there's any additional rights, substantive rights, for the accused that you would add to this list of rights that we gave him.

TAFT: Well, Mr. Hunter, the two points that I mentioned in my testimony are the only things that I would...

HUNTER: Bring that mike a little closer, sir, if you could.

TAFT: The two points that I mentioned in my testimony are the only ones that I would bring in.

I do think that coerced testimony should not be admitted, even in the circumstances that you have -- the finding that you said, just described. And I would...

HUNTER: OK. Well, let me just ask one question on that, because I...

TAFT: Could I just finish the second one?

HUNTER: That's a common point. I'll let you make your second one, but since that's a common point...

TAFT: Thank you. It's just the hearsay. I would also exclude hearsay.

HUNTER: OK. You would exclude hearsay. And hearsay was not excluded at the Nuremberg trials, nor was it excluded in Rwanda.

But let me just say that one of the testimonies that was given to us as we very carefully put this legislation together, with respect to the potential exclusion of any coerced testimony, one of our JAG officers testified to us, in essence, he said, any time you capture somebody at the point of a gun, and you've got a loaded gun pointed at them, and they make statements, there's always an element of coercion that attends that.

And he said, if you flatly exclude any evidence that's excluded under coercion, you have an argument with respect to any statement at all that's made on the battlefield, because battlefield statements are always extracted, generally by somebody who is at the other end of a loaded weapon.

And so, once again, I would offer that that evidence is excluded, unless a judge makes the two findings that we put in as conditions upon which that evidence can be admitted.

And so, let me ask another follow-up on this.

You stated -- you've all stated, except for Mr. Philbin -- that Guantanamo should be closed or people should be moved from Guantanamo.

Now, my understanding is that not a single person has been murdered at Guantanamo. And yet, there's nobody sitting in this hearing today, nor is there a single member of Congress who can say that about the prisons in their respective states.

There is not a major prison in this country which has not been the site of murders.

So, Mr. Taft, do you think, in light of that, that we should close down domestic prisons when murders occur in those prisons on the basis that they have been given a stigma or have been given a bad image, and that that detracts from the world view of America?

TAFT: No...

HUNTER: Do you think we should close down domestic prisons, if murders occur in domestic prisons?

TAFT: No, sir.

HUNTER: Mr. Philbin?

PHILBIN: No, sir.

HUNTER: Mr. Katyal?

KATYAL: No, sir. And I would add that, if the best we can say about Guantanamo is that no murders occurred there, that strikes me as not the most important thing.

We are in a war on terror, and our reputation and our values are how we win this war on terror.


Mr. Katyal, let me ask you this question, then, since you've stated that that's not the full picture, in essence.

If you've looked over -- and I'm sure you have -- the health care that's delivered to the people in Guantanamo, which appears to me, and by testimony of our doctors who were there, that it's really a higher quality than many HMOs and Americans receive.

The average prisoner has gained something over six pounds in weight since he's been there. That the medical care is good.

The diet -- in fact, when we went down on our bipartisan CODEL, we ate the same menu that the prisoners had. As I recall, on one Friday it was honey-glazed chicken. It was lemon fish for Saturday served with rice pilaf. It's quite an attractive menu, if that's attractive.

If we are paying for prayer rugs, if we interrupt the daily routine five times a day to give prayer call for all the prisoners over the loud speakers.

When we left they were -- they had a soccer game going on when our CODEL left.

What additional things do you think we should give those prisoners, in any setting, that they aren't receiving?

KATYAL: Again, a great question. And there are undoubtedly great stories about treatment at Guantanamo, about the food, about guards who care for the detainees, and the like.

There are also bad stories about what happens at Guantanamo, whether it be...

HUNTER: Well, Mr. Katyal, I want your opinion, based on defects that you see. Don't accept my statement as a fact.

Do you see a -- is there anything else that you would give those people right now that they don't have?

KATYAL: Let me point to one from my own experience.

Mr. Hamdan was put in solitary isolation, did not see another human being for 10 months. Our own CIA manuals say, if you put someone in solitary isolation for three days, it causes permanent psychological damage.

Yet, we want to try these people after they've been put through that long period of isolation. That strikes me as a dangerous strategy.

What I would say, Mr. Hunter, is that, Representative Hunter...

HUNTER: OK, so isolation.

KATYAL: Yes, so what I...

HUNTER: Isolation is a substantive -- you think we've isolated some people too long, and that that is a condition you would change.

Although my understanding is that nobody there right now is isolated beyond very short periods of time.

KATYAL: I believe that's inaccurate, and that camp six effectively amounts to a solitary isolation facility, which houses dozens of detainees.

But, again, I don't know exactly the details...

HUNTER: OK. But let's put you down as saying isolation is a condition you would change.

KATYAL: And then...

HUNTER: What else?

KATYAL: ... I think the most important thing is the trials -- not the detention, but the trials -- because that's what the world is watching. And the trials have to take place under a regime of fairness, with review that we know will survive the Supreme Court's test...

HUNTER: OK, key question. And, Mr. Chairman, I'll them move on. But this is a complicated area. We devoted hundreds of hours, and therefore, the consideration of reviewing this record. And what we did has to be very carefully looked at.

You said the fairness of trials, and that's been used interchangeably with moving the site from Guantanamo to the U.S.

Why can't you have just as fair a trial at one site? Because fairness in trials is manifested in rights and the application of rights.

Why can't you have just as fair a trial inside a building in Guantanamo as you have inside a building somewhere else in the world?

KATYAL: Because the trials that take place at Guantanamo take place against the government's argument that the Constitution doesn't constrain what they do.

Again, Representative Hunter, it's not the rights on the piece of paper, it's the way the rights are enforced.

So, for example, on that piece of paper you read, it said there's a right to exculpatory evidence. That's the same right that was there in the last military commission system.

And what happened? There were front page stories in the "New York Times" and the "Wall Street Journal," that the military commission prosecutors protested the system, because it wasn't turning over exculpatory evidence for the defense.

HUNTER: What does that have to do with the location, in which building the trial is held?

KATYAL: Because if...

HUNTER: Why would in one building you wouldn't get exculpatory evidence, in another building you would have it?

KATYAL: Because if it takes place in America, the administration can't cling to its wrong argument...

HUNTER: Mr. Katyal, you've just contradicted yourself, because you told me, your first answer to the question was, thee were no substantive rights that were changed as a result in the difference in sites between Guantanamo and America.

Now you tell me you must have them in America, because there are new rights that attach.

Now, which one is it?

KATYAL: With all due respect, it's not a contradiction. It's the same argument. That is, if the trials take place now at Guantanamo, they will take place with no constitutional rights. That's what the administration is saying.

That will get struck down by the Supreme Court, and we will be left years from now with no convictions.

I'm saying, Representative Hunter, move them to the United States where it's undoubtedly the case, and the administration can't cling to its bad argument that no constitutional rights apply. And then you will see the discovery process unfold more fairly, you'll see the rights given mirror those of our courts-martial system.

And I think the world will be on notice that America does justice fairly and proudly.

HUNTER: OK. Ms. Massimino?

MASSIMINO: Yes. I have to...

HUNTER: What's your -- what are your thoughts here?

MASSIMINO: I have to admit that I'm a little confused by your framing of the question about the safety of the prisoners at Guantanamo. I don't hear anyone arguing that Guantanamo ought to be closed because it's unsafe for the prisoners.

Now, Human Rights First, my organization, has not been permitted to go to Guantanamo for the purpose of a fact-finding mission about the treatment of the prisoners.

We go down to observe the military commissions trial.

But we are not arguing, and we have not argued that it should be closed because it is unsafe for the prisoners, because they might be murdered there. But...

HUNTER: Well, are they inhospitable?

MASSIMINO: Excuse me. But...

HUNTER: Let me just address that, since you asked that -- you made that point.

My point is that, if there's a reason to close down a prison, it's because people are murdered in the prison. The first thing you go to is murder.

And the point is, every single prison in the United States has had murders occur in it. Guantanamo has never had a murder occur in it.

So, if you go on the basis that severe acts -- that is, murder -- occurring to the inmates justify closure, we would justify closure of every prison in America before we closed Guantanamo, because nobody's been murdered in Guantanamo.

MASSIMINO: That's a straw -- with respect, that's a straw man. No one is making that argument. And that's not...

HUNTER: Well, then, how about the treatment?

MASSIMINO: And that's not the sole reason why we -- the only consideration that ought to be -- that you all ought to be thinking about when you decide where we ought to hold these prisoners...


HUNTER: How about the treatment of the prisoners?

MASSIMINO: Well, as I say, we have not been able to go there to make any kind of independent judgment. But I will say that people who have, including Secretary Gates, has said that the trials there will never be viewed as fair by the rest of the world.

Now, that is a very sad fact, but it is a fact. And we have to grapple with that.

When the government originally argued that Guantanamo was the legal equivalent of outer space -- now, thankfully, because of our courts and this Congress, that's no longer really true.

But the rest of the world believes that. And unfortunately, they always will.

Now, you know, we have not been clamoring for years that Guantanamo be closed, frankly, because for us, as Will Taft said, it's more important how they are treated and the legal system under which they are judged, than whether they're 90 miles south of the United States or they're here.

But you must consider, I would submit, whether the liabilities of continuing to hold people there under the system that we have constructed, outweigh the benefits.

Now, there are clearly some benefits, as you've heard. But there are serious liabilities. And people much more close to the national security interests of the United States than I am have made that judgment and are making that argument.

And I would submit to you, that when you think about Guantanamo, and the Military Commissions Act in particular, until you start to consider that those issues must be addressed in the context of a broader strategy to defeat Al Qaida, then we will continue to make these kind of shortsighted mistakes.


Mr. Chairman, thank you for that time.

I would just recount that, with respect to going through this large array of defendants' rights, the basis defendants' rights in any trial -- there were precisely two recommendations that were made for expansion of those substantive rights.

And no one gave a condition, a living condition, that they would change in Guantanamo, except Mr. Katyal said that he thought that isolation was, in and of itself, an inappropriate aspect of incarceration.

But with respect to the food, with respect to the medical treatment, with respect to the prayer call, with respect to the exercise, no one had a complaint.

MASSIMINO: Excuse me.

HUNTER: And Mr. Chairman, I think that closing down a base to fulfill a myth, which is that we brutalize people at Guantanamo, only confirms the myth. It certainly doesn't alleviate those who would criticize our country.

SKELTON: I thank the gentleman.

Dr. Snyder, please?

SNYDER: Thank you, Mr. Chairman.

We've been here an hour and 50 minutes, and so you finally get to look at a different face than our chairman and ranking member.

We have a policy here of what we call questions for the record, in which sometimes something comes up that you may not know the answer and that we give you a chance to submit it in written form.

Mr. Chairman? Mr. Chairman? Mr. Chairman?

What I want to do is, my question for the record is, I think every one of you have been interrupted multiple times in your answers so far today, and these are very complex questions.

If, after this hearing is over, on review you believe that you would like to provide either more complete answers to any questions you have been asked by any member or amplify on anything that's come up, please submit your statements and as a response to my question for the record that you have that opportunity to do that.

SKELTON: Without objection.

SNYDER: The posture we're in as a committee in the Congress is that the president...

HUNTER: Mr. Chairman, just reserving the right to object, I just want to comment on that.

I'd just say to my friend, that we've gone -- it's important when you have a limited amount of time in a hearing, we all have our statements and our positions that we want to take, and that's absolutely appropriate with respect to our witnesses.

But there are several key facts that we have the right to explore. And so, when I ask the question, what additional rights would you give, above and beyond the ones that I read, it was important to get an answer to that. And that's why I asked the witnesses to, along with the rest of their statements, answer those questions, and they did.

So, I would just say to my friend...

SKELTON: It has occurred...

HUNTER: ... that I didn't intend to cut anybody off, and I want to see, if you have reams of paper in explanations that you want to give with respect to your answers, let's do it.

But I thought it was important, because the rights that we put together and the deliberation that we undertook built this bill, this body of law, that we are now using.

And the substantive rights that accrue to those defendants under this body of law are the key to whether a reviewing court is going to uphold this law in the future. That's why those questions were critical.

With respect to Guantanamo, the condition and treatment of the prisoners is everything. And so, while world opinion may be an important thing, the actual treatment of the prisoners, and whether or not prisoners have been murdered is absolutely crucial to this question of whether we should close down Guantanamo.

So, I thank my friend, but I think it was important to get those answers on the record, and I would be happy to agree with him, that if they have extended answers, that's absolutely fine with this member.

And I would withdraw my objection.

SKELTON: I was about to say, doesn't it constitute an objection? But we'll see.

Dr. Snyder, your time will be adjusted.

SNYDER: Mr. Chairman, in response to this discussion, it is a matter of the rules of this committee that I can ask a question for the record. No member has the right to object to any question I ask for the record. So this discussion about and what you said, without objection, and Mr. Hunter reserved the right to object, that's not the way the rules are.

I have a right to ask a question for the record. I have done that, and I look forward to any response or...

SKELTON: You certainly do, and let me tell the gentleman that he withdrew his objection. And I also (inaudible) that it was not a proper objection.

SNYDER: Thank you.

One of the issues that has come up is -- what I started to say is, in leaving this question, I find this very complex. And I guess that's the nature of the topic, as Mr. Hunter's discussion brought out.

We're in a posture where the president made a decision to do the Guantanamo facility. There have been no legislative restrictions placed on that.

He has the authority at this time to continue it. He has authority to move the prisoners, as he's done. He has authority to shut the thing down tomorrow and move everyone.

Apparently, there has been a very, very vigorous debate within the administration about what they want to do. But there has not been any restrictions put on that.

In our subcommittee a couple of weeks ago, a Military Personnel Subcommittee, we did our wounded warriors bill, and there was an amendment that went to a vote -- unfortunately it was a party line vote, and it was, I think fortunately, voted down -- in which the basic language would be, if Guantanamo were to be shut down, that none of those enemy combatants could be located anywhere within 50 miles of a military medical treatment facility.

Well, that brings -- Mr. Philbin, your point is a great one -- security has got to be the number one issue. I always thought the most secure place for these people would be on a military base. All bases have military treatment facilities.

So it means they could be on no military base in the United States.

We then put ourselves in the position of contracting out with a state facility, trying to find room on another federal facility, building something out on state land.

So, my specific question is with regard to this geography determining rights.

If the amendment that was proposed by one of my Republican colleagues were to be law and we could not place these people on military bases, became they would be in proximity to a military treatment facility, and we ended up putting them not on federal property, then do we have any issues with regard to any state rights that would complicate this matter further?

Two weeks ago I would have thought this was completely hypothetical until my colleagues presented this amendment.

PHILBIN: I'm not sure I know the answer to that legally. I would assume that, even if not on a military base, that they would be located on federal property.

SNYDER: I thought so, too, until this discussion. You could easily see that being farmed out to -- the State of Arkansas has 20 empty beds, we will pay you to incarcerate these folks.

PHILBIN: And I have to caveat this. I'm not really sure. But I think that the Bureau of Prisons has contracts with states' facilities all the time to house prisoners. That's the nearest analogy I can think of.

I don't think that that creates additional complications, additional rights, because they're contracted in a way that they're still in federal custody. So, it doesn't give them different rights arising from state law that they would have -- other than the rights they have as federal prisoners in a federal facility.

SNYDER: It is still not clear to me, this issue that the geography of being on the federal, clearly U.S.-controlled property at Guantanamo versus in the United States.

Mr. Philbin, you think it's settled law about what kind of rights they have.

Are all three of our legal experts -- or are -- Ms. Massimino, you're a lawyer. Are you an attorney also?

MASSIMINO: Yes, sir.

SNYDER: Oh, all are. Are you all in agreement with that proposal? I mean, does the geography change the rights when they come to the United States?

PHILBIN: Well, if I could give a brief answer first.

I think that it is settled law that aliens outside the United States do not have rights under the Constitution. And other members of the panel can object or disagree. But I don't think...

SNYDER: On federal-controlled property.

PHILBIN: Well, but then, I think that's where the disagreement on this panel will come, that Professor Katyal will suggest that there are indications in recent Supreme Court decisions and a footnote into the Rasul decision and in a concurring opinion by Justice Kennedy in Verdugo-Urquidez and a concurring opinion by Justice Kennedy in Rasul, that the absolute control, the jurisdiction and control over the physical land at Guantanamo that the U.S. has makes it different, and that it should be treated just as if it were U.S. soil for purposes of the extension of constitutional rights.

I disagree with that. I mean, there is a footnote there in the Rasul opinion. It's just a footnote. It's not a holding yet.

I believe the current law is that, as held recently by the U.S. Court of Appeals for the D.C. Circuit, that Guantanamo is outside the United States. It's not United States territory.

As a result, U.S. constitutional rights don't extend to aliens there.

And one would have to consider that, if it were true that just jurisdiction and control means that constitutional rights extend to a place, occupied Germany was occupied for years. The Landsberg prison where prisoners were held in the Eisentrager case was controlled by the United States.

The U.S. sector in Berlin was controlled for decades by the United States. And whether or not just control over a place for an extended period of time means the constitutional rights extend there is a very dicey issue. And...

SNYDER: Mr. Philbin, my time has long expired, but thank you for your answer.

SKELTON: Thank the gentleman.

Going down the list, before the gavel, Mr. Johnson of Georgia.

JOHNSON: Thank you, Mr. Chairman.

SKELTON: Ms. Sanchez, thank you.

JOHNSON: What evidence, Mr. Philbin -- well, let me ask the question this way.

SKELTON: Would the gentleman suspend?

I apologize. I misread the list. It's Ms. Sanchez before the gentleman from Georgia.

The gentlelady from California is recognized.

SANCHEZ: Thank you, Mr. Chairman.

And thank you, all of you, for being before us today.

As the chairman knows, I've been very interested in this topic, probably even before most of the members of this committee.

I believe that the Supreme Court will uphold the MCA. And I do believe that aliens outside the United States don't have U.S. constitutional rights for some very good reasons. I think the Supreme Court will not extend the reach of our Constitution to the four corners of the globe.

The Constitution is our national law. Outside the territory, international law applies.

And I think it would be very poor on their part to extend constitutional rights to people detained, for example, for war reasons elsewhere, like in Iraq. I mean, what are we going to do, let Iraqis bring equal protection claims in U.S. courts?

I really think the idea is so ludicrous, it's almost self- refuting. So, I'd begin with the process that there's a reason why we have these detainees in Guantanamo rather than here in the United States.

I have some questions for Mr. Katyal. Is that how you pronounce it?

KATYAL: That's fine.

SANCHEZ: I have a number of concerns about trying cases by courts-martial, because I believe that the MCA looks like and functions like the court-martial, but it isn't. And we determined, when we passed that law, that military commissions would have a legitimate place in U.S. military law, and that would be an alternative for trying alien, unlawful, enemy combatants.

And I would also point out that MCA authorizes the use of military commissions, but it doesn't require their use in war crime cases. In fact, if the president wanted to, he could still direct that Hamdan, Hicks or other detainees be tried by courts-martial instead of military commissions.

But since you're such an advocate of courts-martial, the MCA expands the kinds of offenses that may be tried by military commissions to include certain offenses that are not traditional war crimes, but are still offenses that should be available, I believe, to the prosecution of international terrorism.

For example, crimes of hijacking, material support to terrorism, and even conspiracy are arguably not war crimes per se.

Do you believe that such crimes could legally be tried by courts- martial under the UCMJ today? Because, if we were to use courts- martial for these trials, we would have to give up the possibility of charging your clients with these kinds of terrorism offenses. Isn't that right?

These offenses can be tried by the military commissions under the MCA.

KATYAL: A terrific question, Representative Sanchez.

First of all, I don't think that the MCA can both look like a court-martial and not be a court-martial at the same time. It's one or the other.

And my view is that it should be a court-martial, these trials should be courts-martial, to signal to the world and comply with our Geneva Convention obligations, regular courts with offenses defined ahead of time, not before.

The crimes you mention -- crimes like hijacking and conspiracy -- were added in October of last year. And we can't turn back the clock and apply them to people who have already committed their acts. After all, that's what the Article 1, Section 9 ex post facto prohibition is all about.

Of course, those crimes that you mention are crimes at least in the civilian code, if not in the military code, as well.

But let me point out two fundamental defects between -- for the reason why courts-martial don't -- why the MCA doesn't look like a court-martial. One is expedited review. Representative Skelton's opening remarks about how a court-martial, we know the system is fair. It's been upheld by the Supreme Court time and time again.

This is a newfangled system operating in what the administration calls a legal black hole.

SANCHEZ: Reclaiming my time for a moment.

If we were worried about every time we make a new law and there wasn't case law for it, then we would never make new laws. If we were worried about every time we tried a person that we were going on new ground, then we would never make a new system.

So, I think that that's neither here nor there.

KATYAL: What I'm saying...

SANCHEZ: The Supreme Court will decide.

KATYAL: And what I'm saying, Representative Sanchez, is that it's not just that it's a new law, there is law that's fundamentally against what the MCA is all about. And the arguments that you would advance, the arguments Representative Skelton has advanced, are the same arguments we've heard for five years.

Johnson v. Eisentrager is going to uphold this military commission system. We don't have to give Geneva Convention protection. We don't have to give habeas...

SANCHEZ: No. Again, reclaiming my time, that's not the case.

In fact, I argued to the former chairman, now the ranking member, and to the chairman during the year, that I thought the Supreme Court would come back and tell the Congress, you are in charge of writing the rules for these military commissions, or whatever it is you decide to do, not the president.

But I believe that we had a very thorough process in doing this. And I do believe the Congress had that right and it was their responsibility. And we did it.

If you'll indulge me just -- I have one more question that I have for the gentleman, Mr. Chairman.

SKELTON: Please proceed.

SANCHEZ: I'm very concerned about you wanting to go to courts- martial versus what we've done in the MCA. And it has to do with the rules of evidence, in fact, Military Rule of Evidence 305.

Because, as you know, battlefield interrogation, other types of interrogations that have gone on have not been with Miranda rights or (inaudible).

And so, it's my opinion that if somebody who is on the side of a defendant right now, of course you'd like to kick this into a courts- martial process, because the evidence in the interrogation and any of the information we may have had since your client didn't have Miranda rights read to him, would be thrown out automatically. Don't you believe that?

KATYAL: Absolutely not. As I testified in the Senate in July of last year, the United States Court of Armed Forces -- our highest military court -- has issued an opinion called United States v. Lonetree, in 1992. The Lonetree decision says that when interrogation is taking place for purposes of intelligence gathering, no Miranda warnings need be given.

And so, I would respectfully disagree with the judge advocate general that Mr. Hunter referred to earlier, because it's quite clear under existing military law that no Miranda warnings need be given, and the evidence would not be excluded, so long as the interrogation is being undertaken for purposes of intelligence gathering, which is, as I understand it, what these interrogations were all about.

SANCHEZ: And I would differ with you, in that the line of case asked in Lonetree asked whether the intelligence and law enforcement investigations have merged.

And if they have merged, then the exception does not apply. And as you know, at Gitmo, it's almost a total merge of intelligence and law enforcement purposes and routine sharing of information between intel and criminal investigators.

And I realize my time is over, but I would disagree with the gentleman.

SKELTON: Thank the gentlelady.

Ms. Castor and then Dr. Gingrey.

CASTOR: Thank you very much for your testimony today.

I'm very concerned that the Bush-Cheney policy here has undermined our national security and, in fact, unnecessarily delayed bringing terrorists to account.

It hasn't been smart or strategic from a counterterrorism point of view, because it has fed the radical jihadist terrorist movement.

I think it has been very interesting, just in recent days the press reports about the struggle in the executive branch. It's been reported in his first week, says Defense Secretary Robert Gates repeatedly argued that the detention facility at Guantanamo Bay, Cuba, had become so tainted abroad that legal proceedings at Guantanamo would be viewed as illegitimate.

He told President Bush and others that it should be shut down as quickly as possible. And he was joined by Secretary Rice.

It's been reported President Bush and Attorney General Alberto Gonzales and Vice President Dick Cheney rejected those arguments.

So, as I think it's going to be vital to look at this from two points of view. One is the broader view. As you put it, reconceptualize our counterterrorism strategy and strengthen it, try to repair the damage done to the relationships with the global community and our allies.

But then I'd like you all to focus now on specific recommendations to this committee moving forward. I've heard a few -- a national security corps ensuring that rights that are written on paper are implemented and enforced, and not just written down.

But what else specifically can you recommend to this committee right now that should be changed, should be implemented, should be adhered to?

Secretary Taft?

TAFT: My recommendation, as I said, was that we should shut down the facility at Guantanamo. I understand the factors, that it's mostly logistical convenience that suggests that it has advantages.

But on the whole, it seems to me that the political cost is too high.

I don't see that there is any great difficulty in finding places in the United States in the military facilities to house the detainees there that we are entitled to have in custody.

I mean, I'm familiar with a number of situations where, for example, when we took in the Vietnamese refugees in the late 1970s, we had over 100,000 people housed over a period of eight months on military bases.

There is plenty of room. There are facilities. We can get security. The military can do this.

And I was in the Pentagon for eight years, so I know a little bit about this. And it can happen.

So, logistically, it'll cost some money, but it costs some money in Guantanamo. They can do it. It'll be secure. It'll be safe. And that's what we ought to do.

The cost politically is too high. And that's my recommendation to the committee.

PHILBIN: Representative Castor, I would not recommend abandoning Guantanamo and making that sort of change.

And I'd just like to respond, and respond to your question also, to something that you picked up on from Ms. Massimino's earlier comments about reconceptualizing our approach to the war on terror.

Part of the reason that I think closing down Guantanamo will not achieve the intended objective of repairing relations, strained relations, with foreign partners is that, the real criticism is not just Guantanamo.

As Secretary Taft put it, you know, some brands become toxic. I think the brand that is toxic is not just Guantanamo. It's not the place.

The reason that we get criticism from our foreign partners is that they fundamentally reject the law of war paradigm that we're applying to the conflict with Al Qaida. They reject the idea that we can hold people as enemy combatants for years without charging them and trying them for something.

And I don't think that we should abandon that law of war paradigm.

And to get back to what Ms. Massimino said at the beginning, I don't think that law of war paradigm in any way empowers or heightens or raises the terrorists that we're fighting against by giving them some sort of legitimacy as combatants.

We have recognized that this is an armed conflict, but that our opponents, Al Qaida, are unlawful combatants in that conflict. They are not legitimate belligerents.

They are violating the laws of war in everything they do. It is an unlawful armed conflict. They attack women and children. They operate without uniforms. They don't abide by the laws of war.

And it does not in any way diminish the laws of war to treat this as an armed conflict. What would diminish the laws of war is, in treating this as an armed conflict, to treat them as if they were legitimate belligerents, as if they had rights as lawful belligerents. And that's not the approach we've taken.

We've recognized that this is an armed conflict, because of the level of hostility, the level of destruction that's involved in the attacks and the transnational attacks, but at the same time have recognized that it's a conflict carried on by unlawful belligerents who can be prosecuted for their war crimes.

And I think that's the right paradigm and that we shouldn't abandon that paradigm.

KATYAL: I would fundamentally disagree with Mr. Philbin that the idea for why Guantanamo is so offensive to the world is because of the law of war paradigm. I don't think there are a bunch of law professors sitting around analyzing what legal regime applies, the law of war or law of peace.

The real problem, as Secretary Gates and Secretary Rice have said, is that Guantanamo has become a black hole where no law applies. The rest of the world is very concerned about that idea.

And so, that's why Britain, Australia and all these other countries -- Britain refuses to let its own citizens be tried at these Guantanamo commissions for this reason.

So, I would do three things.

First, I would move the trials to the United States. They're high-visibility events. Second, I would restore habeas corpus to the people at Guantanamo.

And third, I would abandon the MCA project in favor of a court- martial review, or at the very least, take up Representative Skelton's idea about expedited review of these military commission procedures.

MASSIMINO: Thank you.

SKELTON: Do you have a comment, Ms. Massimino?

MASSIMINO: I was going to answer...

SKELTON: Go ahead.

MASSIMINO: ... the congresswoman's question, the recommendations that I would make right now.

And they are informed by a belief that this view that there's a stark, binary choice between the criminal justice system and war is a trap that we have fallen into.

First, I would close Guantanamo. And I think that that will speed up the process of repatriating the people that the United States finds is no longer a threat.

I would try them in either regular courts-martial proceedings or in federal court, as we've done with many other Al Qaida terrorists since 9/11.

I would restore habeas corpus to the detainees.

I would repeal the MCA, or at the very least, fix the overly broad definition of enemy combatant, which funnels people who have never been considered combatants under the laws of war into this military system.

And I would -- something we haven't addressed here, but should be of great concern to this committee -- I would engage very quickly on the administration's current consideration of how it will interpret Common Article 3 of the Geneva Conventions, because while that's being framed as the rules for interrogation for the CIA, essentially what that project is, right now is deciding what protections our military will have when they're engaged in non-international armed conflicts.

And that's very, very important for our people and should be of interest to this committee.

SKELTON: I thank the gentlelady.

Dr. Gingrey, then Mr. Johnson.

GINGREY: Mr. Chairman, thank you.

First of all, let me just comment in regard to what Mr. Taft said a few seconds ago in regard to how we dealt with the Vietnamese refugees in federal facilities.

I would suggest to the gentleman that Khalid Sheikh Mohammed is a little different than Vietnamese refugees in regard to security or for housing these enemy combatants.

I want to direct my question to Mr. Katyal first. I want to ask the gentleman, the professor of law at Georgetown University, if he is permitted to have any outside employment other than, I guess, full- time faculty position. Are you able to take any consults or consultations or anything?


GINGREY: In regard to that response, have you ever been of counsel or represented in any way, shape or form any of these enemy combatants that are detained at Guantanamo Bay?

KATYAL: Yes, representative. As my prepared statement said and my oral statement, I represented Mr. Hamdan pro bono all the way up to the Supreme Court of the United States and argued his case in the Supreme Court.

GINGREY: Very, very interesting.

Well, thank you. I got here late, and I'm sorry I didn't hear that initial testimony. I think that, certainly for this member, sheds some additional light on maybe where you're coming from in regard to some of your testimony that I have heard.

I do want to ask you, in regard to the issue of an alien, I think we all know pretty much the definition of an alien -- an unnaturalized foreign resident of another country.

And I think you have spent some time this morning in your testimony trying to state that Guantanamo Bay, Cuba, is United States territory in some way, shape or form.

But I think you probably are aware that we lease Guantanamo Bay from the sovereign country of Cuba. And, in fact -- and I would expect that you would know this, as well, that Castro has, in fact, not even cashed the checks that we have submitted to him as the lease payment on an annual basis. So, he doesn't even recognize the lease as legal.

So, I just find it amazing that you could consider this United States sovereign territory and apply the same rights to these enemy combatant detainees that are there at Guantanamo Bay as if they were aliens -- legal or illegal -- in this country or a territory owned by this country.

Could you explain that to me?

KATYAL: Absolutely. And my position is that -- it's not my view, it's the view, I think, of the United States Supreme Court -- that Guantanamo, because of the degree of American control over the base, is, for all practical purposes -- that's Justice Kennedy's quote from the last Supreme Court decision -- United States territory. And let me explain to you why.

This is a lease unlike any other lease. I lease an apartment, and I'm sure many of your constituents do. The lease with Cuba says that we lease these big piece of land, 45 square miles, from Cuba for $4,000, or something, a year until both parties say the lease should be broken -- both.

So, this is effectively permanent territory of the United States, regardless of what Mr. Castro decides to do or not.

And the fundamental point is this. Guantanamo...

GINGREY: Well, I think the fundamental point, with all due respect, is that we would be a tenant at will in that situation.

KATYAL: Our position is that we have that lease indefinitely, and that the laws of Cuba do not apply to protect these detainees, neither does the Constitution of the United States.

That's different from every other parcel of land in the world. That's why Guantanamo Bay was chosen by the administration. They adopted a legal theory that said, well, this is a place where we have absolute control, but we don't have to follow the laws of Cuba, because we're effectively permanent leaseholders in this area.

That's why, I think, you've seen the degree of condemnation internationally, and why Secretary Gates and Rice are reportedly wanting to close Guantanamo...

GINGREY: Well, I appreciate your response. My time is limited, and I want to move on to the next question, because you just quoted a Court precedent in regard to Justice Kennedy's opinion on that.

You commented just a few minutes ago in regard to restoring the rights of habeas corpus. So, let's go to another court decision then.

February 20, 2007, the United States Court of Appeals for the District of Columbia decided -- I think I'm pronouncing this correctly -- Boumediene v. Bush, that Guantanamo detainees have no constitutional rights to habeas corpus. And I tend to agree with that opinion.

And I further note that the Constitution clearly calls -- clearly calls -- for the speech (ph) and of habeas with the existence of an invasion or a threat to public safety.

I'd like, Mr. Chairman, if you'll indulge me, I realize that the time has expired, but let Mr. Katyal respond to that, if he would.

KATYAL: I have great respect for that court, the Court of Appeals for the D.C. Circuit. I think their track record in these cases has not been good.

The decision on February 20th is the same sort of decision as the one they issued in 2003 on habeas corpus rights of Guantanamo detainees. It was reversed by the Supreme Court, as was that court's later decision about military commissions at Guantanamo Bay.

So, I would caution this body to read too much into a 2-to-1 decision by that court.

SKELTON: I think I would point out to the gentleman that it was a 3-to-2 decision, if I'm not correct.

KATYAL: I think it's 2-to-1.

SKELTON: Was it 2-to-1?

It is, as I understand it, on the way to the Supreme Court. Is that correct?

KATYAL: The Supreme Court tomorrow is scheduled to decide in conference whether to hear that case, yes.


Mr. Johnson?

JOHNSON: Thank you.

The Military Commissions Act of 2006 authorized the establishment of military commissions to try alien unlawful enemy combatants. And prior to that time, there had not been that class of alien that was recognized in law.

But with the advent of that act, we carved out, instead of a prisoner of war, now we have this second class of alien unlawful enemy combatant.

And that was a law that was passed by the 109th Congress, that put it into the hands of the secretary of defense, in consultation with the attorney general, to formulate rules for the conducting of trials of these enemy combatants.

And then at the same time, the administration, under the leadership of the now-embattled attorney general, whose respect for notions of constitutional principles are suspect, in coordination with the secretary of defense, who is now thoroughly discredited, they had embarked upon this plan to establish that black hole, Guantanamo Bay, which is not subject to this legal fiction.

It's not subject to U.S. jurisdiction or Cuban jurisdiction -- or any other jurisdiction. And so, therefore, no rights apply -- no Geneva Convention rights, no U.S. constitutional rights. We'll just decide as we go along, and we'll leave it up to the attorney general -- we'll leave it up to the secretary of defense, along with the attorney general -- to promulgate these rights.

And Congress has absolutely no say-so about those particular rules that have now been established and that we are now operating on in trying these enemy combatants. Congress has not approved them. The only thing that happened was this committee was briefed on those rules. And it was about a 45-minute briefing.

And so now, the constitutional bedrock principles that his country has been founded upon have been thrown out of the window, and we are told to assume that the arrest and detention of any person in, say, Iraq or Afghanistan, but certainly not limited to those two places -- anywhere in the world that we decide to arrest somebody.

Then we start referring to them as terrorists, and there is no idea of probably cause that's given to these people to challenge the detention in advance of being charged. And, in fact, they can be held indefinitely.

And they've been held for, as you note, Mr. Katyal, five years or more -- five years without charges, people still being held, held incognito in Guantanamo, not able to notify family, not able to have an attorney to represent them to contest the merits of their detention.

And now they're being brought to trial under these principles that have been established by the attorney general and the secretary of defense, which enable or allow for the use of coerced testimony, torture, to convict the accused. And it's held in a secret trial.

So, my question is to Mr. Philbin.

Evidence obtained from a witness who was forced to stand up non- stop for 20 hours is admissible in a trial of an enemy combatant. Is not that correct? Isn't that correct?

PHILBIN: That is not clear from the rules. It would have to be determined by a military judge in charge of the tribunal. If...

JOHNSON: And it would be the burden of -- that the presumption would be that the evidence obtained in that manner was, in fact, probative and...

PHILBIN: No, I don't think there's any presumption like that put into the Military Commissions Act. The Military Commissions Act says that, if there's a disputed amount of coercion with respect to some evidence, if the conduct occurred after passage of the Detainee Treatment Act and the conduct violated the Detainee Treatment Act, that the evidence can't come in, period.

If it is does not violate the Detainee Treatment Act, the military judge must find that, in the totality of the circumstances -- all of the circumstances, including everything that you've described -- that the evidence was reliable and that it had probative value.

JOHNSON: But to make that...


PHILBIN: And it would be in the interest of justice for it to come in.

JOHNSON: And this would be a military judge with a military prosecutor, with a military jury and a military defense attorney, who could be subject to being coerced himself, as is the case with Colonel Morris Davis, the chief prosecutor -- excuse me -- Major Michael Mori, the military defense lawyer for David Hicks, the Australian, who has been accused by Colonel Morris Davis, the chief prosecutor in the case, with possible prosecution himself.

PHILBIN: If I understand it, there are rules in place for the military commissions, just as there are the same rules that would apply in the court-martial system. That if there is influence by a superior -- improper influence to try to pressure one of those on the defense counsel -- that that is a violation of the UCMJ, and that the person who applied that pressure improperly could be prosecuted for that.

JOHNSON: Well, let me ask you this.

PHILBIN: The same protection would apply. And I'd like to...


JOHNSON: Let me ask you this question.

PHILBIN: I'd like to respond to some of the earlier parts of your question, if I may, representative.

JOHNSON: Let me just ask you this question, because I'm out of time.

PHILBIN: You are...

JOHNSON: Do you have any information as to whether or not -- or can you guarantee the international community that Khalid Sheikh Mohammed was not subjected to torture prior to his confession?

PHILBIN: I can't make personal guarantees. The president of the United States has said...

JOHNSON: I think that's the problem that we have with this entire...

PHILBIN: You want me to answer your question, sir? The president of the United States...


JOHNSON: Because it doesn't hold us in good regard to the public.

PHILBIN: ... says that we do not torture. It's the policy of the United States that we do not torture. The United States has never conducted...

JOHNSON: But we allow other countries to torture.


JOHNSON: We'll allow people in other countries to torture, and then we'll leave it up to the judge to decide whether or not that information is relevant, probative, or whether or not it's...

PHILBIN: Not that I am aware of, sir.

And I would like to go back to some of the earlier part of your question, because it contained a number of misstatements.

You said that the Military Commissions Act allows military commissions to admit evidence obtained by torture. That's explicitly prohibited by the Military Commissions Act.

JOHNSON: Well, it's prohibited in terms of the person who is charged.


JOHNSON: The person who is accused, if they were tortured, then evidence derived from that torturous conduct would be excluded, correct?

PHILBIN: I believe that the statement in the Military Commissions Act is that statements obtained by torture are prohibited.

JOHNSON: Well, let me read it to you.

SKELTON: I thank the gentleman. Do you have a -- do you wish to complete your question, Mr. Johnson?


SKELTON: Please proceed.

We're going to try and get the next two members before we break to go vote.

JOHNSON: Yes. The military code of -- MCA allows for the admission of hearsay testimony -- or excuse me -- it allows for the use of torture testimony, so long as that torture was not against the individual who is standing trial.

But statements that were obtained through cruel, inhumane or degrading treatment that does not amount to torture is admissible. And it's not defined. Torture is not defined.

But that kind of evidence is admissible under certain circumstances. And so, we have some problems with this legislation, insofar as the use of information derived from torture. And that's the point that I want to make.

SKELTON: Sir, do you have an answer?

PHILBIN: Yes. I believe that the representative's characterization of the Military Commissions Act is incorrect. The Military Commissions Act prohibits the admission of any statement obtained by torture, whether it's a statement of the accused or a statement of any other person, and as consistent with the United States obligations under the Convention Against Torture.

And just to go back to some of the earlier statements the representative may have...

JOHNSON: Torture is not defined, though, is it?

PHILBIN: Torture is explicitly defined in the Convention Against Torture and in the United States statute.

SKELTON: I thank the gentleman.

We're going to squeeze in the next two, Mr. Wilson and Mr. Sestak, and then we will end the hearing.

We will have to vote shortly.

Mr. Wilson?

WILSON: Mr. Chairman, thank you very much.

And we do have votes, but I would like to make an observation.

I have visited Guantanamo Bay twice. I have the background of seeing a first class detention facility. I served on the Corrections and Penology Committee in the State Senate of South Carolina for a number of years.

I know prisons inside and out, not from having been place there, but having visited and asking questions. Additionally, I was the chairman of our county law enforcement advisory committee working with the detention facility.

In my visit to Guantanamo Bay, I saw a first class facility with trained personnel, professionals, who were well treating the detainees. And in particular, it was very impressive to me, giving the highest respect for all religious observances.

I was surprised on my visits to find there, that these alien detainees from the battlefield were highly educated people, highly trained people to commit mass murder. It was extraordinary to me to find out that such people indeed are enthusiastic in their efforts to want to harm the people of the United States.

I also found out that the interrogation produced information on overseas cells of terrorists in Europe, Asia, the United States.

We found out their training ability, the extraordinary financing capability they had. These are not poor people. These are very wealthy people, who have every intent to kill the people of the United States.

We found out their methods of operation. And indeed, I believe that Guantanamo Bay and the interrogation has saved thousands of lives.

I also have a background -- I was 28 years as a judge advocate general in the Army National Guard. And so, I have worked very closely with the court-martial system. And I respectfully disagree with any thought that we would provide our constitutional benefits to people worldwide.

And so, I respect the view of the congresswoman from California. Indeed, I believe that military commissions protect American families.

And very important, Chairman Skelton, when this issue came up previously, stated, our first goal is to protect American troops.

And I really want to see a system in place that does that.

Mr. Chairman, I yield the balance of my time.

SKELTON: Thank you very much.

Mr. Sestak?

You are recognized. And then we will close the hearing.

SESTAK: Thanks, Mr. Chairman.

Mr. Philbin, I just had a couple of quick ones.

What are the consequences, and particularly security, if any, of transferring detainees from Guantanamo Bay to America? Maybe you've already answered this.

PHILBIN: I addressed it to some...

SESTAK: I'm sorry, to comment on the United States.

PHILBIN: I addressed it to some extent in my written testimony. And, of course, I'm not an expert on this. I think that members of the military from DOD could give you a more precise answer.

But my understanding is, there are obvious security issues. You have 273 enemy combatants held at Guantanamo now, who through multiple screenings have been determined to be a continuing threat, that if they were released they would return to the fight to try to kill Americans.

To bring them to the United States, you've either got to distribute them around to a bunch of different military facilities, because no one facility right now has the capacity for them, in which case you have to increase the security at each of those.

I visited the Naval consolidated brig at Charleston, South Carolina, where Jose Padilla is housed. It's not a very large facility. Some could be housed there, but you'd have to increase the security, and it's right near a population center.

Anyplace that you put some of these detainees, particularly, I think, if you put them all in one spot -- which is what would be helpful for continuing the intelligence mission that goes on now at Guantanamo -- you make it a huge target for any potential terrorist attack that Al Qaida could mount in the United States.

SESTAK: What would the concern be for the supermax prison at Florence, in Florence, Colorado, today, where we have terrorists kept?

PHILBIN: I don't think it...

SESTAK: Are they -- do you happen to even know if Florence, Colorado is on a potential terrorist list?

PHILBIN: I don't...

SESTAK: I mean, the one that we -- you know, the vulnerability list that we keep?

PHILBIN: I'm sorry, I don't know that. And I think that it would be a different situation from supermax. We've got Ramsey Yousef and a few other terrorists to transporting several hundred and concentrating them at one site, particularly where these would be the comrades in arms of the actual people who are still out there.

SESTAK: May I ask you, if you can tell me -- and we only have a moment or two.

In regard to the most important changes you would like to see in the Military Commissions Act that this Congress could make, and particularly hearsay evidence, what would it be?

MASSIMINO: Well, if you're asking, Mr. Sestak, about the military commission rules themselves, there's a long list of defects, and I go through them in my testimony.

SESTAK: Could you speak to the hearsay?

MASSIMINO: Yes. The biggest concern, frankly, that we have about the current hearsay rules is that they will provide a means for a backdoor way for there to be the admission actually of evidenced obtained through torture, frankly.

And that, because of the restrictions that are in there of preserving the classified nature of sources and methods, the problem we have is that the operation of the hearsay rule and the classified evidence rule will mean that the protections against the admission of coerced testimony, evidence obtained through cruel, inhuman and degrading treatment will end up coming in, despite the characterization, which was correct, of Mr. Philbin of the protections against the admission of that kind of evidence into military commissions.

SESTAK: Mr. Katyal, do you have a comment on that?

KATYAL: Maybe I'll just defer to Secretary Taft, who has spoken on the hearsay rules.

SESTAK: Mr. Taft?

TAFT: Congressman, my concern about the hearsay rule is simply that it is inconsistent with our approach embodied in the Sixth Amendment of the right to confront a witness. A hearsay witness is not under oath, he's not on the record, he's not there, he can't be subject to cross-examination.

Such testimony should be excluded. It's not a...

SESTAK: Mr. Taft, would you...

TAFT: It's not improper.

SESTAK: I understand.

TAFT: To say, to want to have a different rule.


SESTAK: But do you think that the hearsay evidence that's submitted at the International Criminal Tribunal for the former Yugoslavia, are they are doing it wrong to do that?

TAFT: They have a very different...

SESTAK: Or is there some sort of structure...

TAFT: No, I don't...

SESTAK: ... that we could take from that to consider?

TAFT: No, they have a very different system in that tribunal. Also in the Rwanda tribunal, and indeed, in national courts in Europe. Hearsay is admitted there, because of the whole different structure that they have for conducting criminal trials, where the judge and the prosecutor play very different roles from what our system is.

And we haven't adopted it in our own civilian criminal trials, and I don't think we should be adopting it here.

SKELTON: There is a vote on.

I thank the gentleman.

Without objection, the letter dated March 8th this year from certain civil rights and religious organizations, is submitted into the record.

I thank the witnesses very, very much. I'm sorry we have to close the hearing, because there is a vote pending.

Thank you. Adjourned.


Source: CQ Transcriptions

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