[Senate Hearing 110-455]
[From the U.S. Government Publishing Office]
S. Hrg. 110-455
IMPROVING DETAINEE POLICY: HANDLING TERRORISM DETAINEES WITHIN THE
AMERICAN JUSTICE SYSTEM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 4, 2008
__________
Serial No. J-110-97
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
43-658 PDF WASHINGTON DC: 2008
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin prepared statement................................... 81
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 96
WITNESSES
Benjamin, James J., Jr., Partner, Akin Gump Strauss Hauer & Feld
LLP, New York, New York........................................ 6
Coughenour, Hon. John C., Judge, U.S. District Court, Western
District of Washington, Seattle, Washington.................... 3
Guiora, Amos N., Professor of Law, S.J. Quinney College of Law,
University of Utah, Salt Lake City, Utah....................... 8
Malinowski, Tom, Washington Advocacy Director, Human Rights
Watch, Washington, D.C......................................... 10
Wittes, Benjamin, Fellow and Research Director in Public Law,
Brookings Institution, Washington, D.C......................... 13
QUESTIONS AND ANSWERS
Responses of John C. Coughenour to questions submitted by Senator
Kennedy........................................................ 27
Responses of James J. Benjamin to questions submitted by Senator
Kennedy........................................................ 29
Responses of Amos N. Guiora to questions submitted by Senator
Leahy.......................................................... 32
Responses of Tom Malinowski to questions submitted by Senators
Leahy and Kennedy.............................................. 35
Responses of Benjamin Wittes to questions submitted by Senators
Kennedy and Leahy.............................................. 37
SUBMISSIONS FOR THE RECORD
Atlantic.com, Washington, D.C., February 27, 2007, article....... 43
Benjamin, James J., Jr., Partner, Akin Gump Strauss Hauer & Feld
LLP, New York, New York, statement and attachment.............. 46
Coughenour, Hon. John C., Judge, U.S. District Court, Western
District of Washington, Seattle, Washington, statement......... 76
CNN, May 14, 2007, article....................................... 80
Guiora, Amos N., Professor of Law, S.J. Quinney College of Law,
University of Utah, Salt Lake City, Utah, statement............ 83
International Herald Tribune, May 8, 2008, article............... 95
Malinowski, Tom, Washington Advocacy Director, Human Rights
Watch, Washington, D.C., statement............................. 98
McCarthy, Andrew C., Director, and Alykhan Velshi, Staff
Attorney, Center for Law and Counterterrorism, Foundation for
the Defense of Democracies, Washington, D.C., statement........ 106
New York Times, July 11, 2007, article........................... 130
Philadelphia Inquirer, June 2, 2008, article..................... 132
Radack, Jesselyn A., Homeland Security Director, Government
Accountability Project, Department of Justice, Washington,
D.C., statement................................................ 134
Wittes, Benjamin, Fellow and Research Director in Public Law,
Brookings Institution, Washington, D.C., statement............. 136
USA Today.com, June 2, 2008, article............................. 140
U.S. News and World Report, June 2, 2008, article................ 141
Wall Street Journal, WSJ.com:
June 4, 2008, article........................................ 145
August 22, 2007, article..................................... 147
Washington Post, October 22, 2004, article....................... 151
IMPROVING DETAINEE POLICY: HANDLING TERRORISM DETAINEES WITHIN THE
AMERICAN JUSTICE SYSTEM
----------
WEDNESDAY, JUNE 4, 2008
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feingold, Cardin, Whitehouse, Kyl,
and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning, everyone. I appreciate this
very good line-up here, and I have to be careful when I say
``very good line-up'' because I once had a job where, when we
had line-ups, people were wearing numbers across their chests.
Senator Whitehouse, do you want to come up here? Please
feel free.
For more than 6 years, this administration has made a mess
of detainee policies. They rejected our courts. They twisted
our laws. They certainly squandered our reputation.
Interestingly, the most conservative Supreme Court in my
lifetime has been the only check on the administration as it
has repeatedly overruled the administration's legal theories.
Detainees have languished for years at Guantanamo, without
access to meaningful judicial review. To date, not one accused
terrorist has been tried, convicted, and punished by the
dysfunctional military commissions that the administration has
established; but prosecutors and judges are being replaced in
ways that leave the impression that the proceedings are being
engineered to guarantee a result rather than ensure fairness.
Now we hear that the administration is intent on proceeding
with high-profile trials, coincidentally, in the weeks leading
up to the November election, such a serious matter turning
trials into a partisan effort.
As we near the end of this administration, it is time to
look forward. The next President and the next Congress will
have to craft a new policy that is consistent with our values
as a Nation and our respect for the law. A starting point is to
examine the premise on which this administration based its
policy, its conclusion that our criminal justice system is
incapable of handling terrorism cases.
Obviously, I disagree. I think we have the greatest
judicial system in the world, and we can handle any kind of
case that comes before us.
So I am not one who wants to dismiss our systems of both
civilian and military justice that have served us so well for
so long. And one of the saddest legacies of this time and what
the administration has done is its distrust of our
constitutional system of justice. We cannot accept without
examination the view that terrorism cases are too difficult for
our courts. As a former prosecutor, I feel very strongly that
we have to make sure terrorists are held accountable and
punished for their actions. I suspect all Americans agree wt
that. So today we begin the process of looking more carefully
at what needs to be done with those suspected of being
terrorists and what our courts--both military and civilian--are
capable of doing.
One excellent contribution to this discussion is the report
that Human Rights First released last week, titled ``In Pursuit
of Justice.'' The report is the result of an in-depth look at
the capabilities of our criminal justice system. It concludes
that our system here in America is sufficiently flexible and
well equipped to handle international terrorism cases. We are
fortunate to have one of the report's authors, James Benjamin,
with us today.
We also welcome Judge John Coughenour. He is a respected
judge who has significant experience with terrorism cases. He
presided over the trial of the so-called Millennium Bomber,
Ahmed Ressam. He speaks with authority on the capacity of our
constitutional system to handle new challenges. The judge's
written testimony includes a quote from Justice Jackson, a
former Attorney General of the United States and our chief
prosecutor at the Nuremberg trials after World War II, who said
``the strength and vitality of the Constitution stem from the
fact that its principles are adaptable to changing events.''
Judge, I agree with you on that. It is a critical point to
remember in this discussion. Is handling terrorism under our
current system really not possible? Or is it just hard? That
means we have to adapt our procedures and that might require
some work. I have the faith, which apparently some in the
administration do not have, that our Constitution and our
courts can adapt to meet the challenge.
Our Constitution and our courts have protected this great
democracy from its inception, and most experts reject the
decisions of the administration, including its effort to
establish a system of detention, interrogation, and prosecution
outside the law. Some propose instead to create ``preventive
detention'' regimes and what they call ``national security
courts.'' Those making these proposals see them as more
legitimate alternatives to the current extra-legal system.
Their underlying assumption, though, is the same as this
administration's--that our existing criminal and military
justice systems are not capable of handling terrorism cases.
Before we start creating some new, separate mechanism
designed to handle those accused of terrorism, we need to
consider the serious impact this could have on our
constitutional system of justice but also our reputation as a
Nation, and on the fight against international terrorists. We
have to ask the obvious question: Would it create more problems
than it solves? Would the current problems simply be replicated
in a new, untested system? The current treatment of terrorism
detainees has had a devastating impact on our national
reputation. Anywhere you go in the world, you hear that. And
that is something the next President, whoever that may be, will
have to restore. Would creating a separate court for terrorist
suspects help us set that right? We will listen to Tom
Malinowski and others on that issue.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Now, our first witness, as I said, is Judge Coughenour. He
is a United States District Judge for the Western District of
Washington. He was nominated the Federal bench in 1981. He
served as chief judge of the district from 1998 to 2004. In
2006, he assumed senior status. The workload did not cut down a
bit, though, did it, Judge. Prior to joining the Federal bench,
he served on the law faculty of the University of Washington,
was a partner at the Seattle firm of Bogle & Gates. He served
as Chair of the Ninth Circuit Working Groups on Jury
Instructions and Gender Bias. He is past president of the Ninth
Circuit District Judges Association.
Judge, please go ahead. I will just mention there is a
little button in front of each of you. If the microphone is on,
it will show red, and this young woman will have a much easier
time keeping your record if you do that.
Go ahead, sir.
STATEMENT OF HON. JOHN C. COUGHENOUR, JUDGE, WESTERN DISTRICT
OF WASHINGTON, SEATTLE, WASHINGTON
Judge Coughenour. Thank you for this opportunity to testify
about terrorism and the Federal courts. It goes without saying,
I speak on my own behalf, not as a representative of the entire
Federal judiciary, nor as a representative of the Judicial
Conference U.S.
It is my firm conviction, informed by 27 years on the
Federal bench, that the United States Courts, as constituted,
are not only an adequate venue for trying suspected terrorists,
but also a tremendous asset against terrorism. Indeed, I
believe it would be a grave error with lasting consequences for
Congress, even with the best of intentions, to create a
parallel system of terrorism courts unmoored from the values
that have served us so well for so long.
Before I explain how I arrive at this conclusion, I want to
emphasize that I have great sympathy for those charged with the
awesome responsibility of our national security. What I hope to
convey in some small measure with my testimony today is that
our leaders in the political branches need not view this as a
choice between the existential threat of terrorism and the mere
abstractions of a 200-year-old document. They need not mistake
reliance on cherished values with complacency toward the new
challenges of a dangerous world. Constitutional is not just a
long walk in aid of regularity.
After spending the greater part of my career on the Federal
bench, and having tried a high-profile international terrorism
case in my courtroom, I think the choice is better understood
as follows: Do we want our courts to be viewed as just another
tool in the war on terror, or do we want them to stand as a
bulwark against the corrupt ideology upon which terrorism
feeds? I believe our choice should be the latter.
Let me begin with the question of competence. Detractors of
our current system argue that the Federal courts are ill-
equipped for the unique challenges posed by terrorism trials.
Objections of this kind frequently begin with a false premise.
That is, some who argue that the Federal courts are not capable
of trying suspected terrorists support this view by citing
various procedural and evidentiary rules that constrain the
prosecutor's ability to bring or prove a case. The threat of
terrorism is too great, we are told, to risk an unsuccessful
prosecution. This assumes that courts exist to advance the
prerogatives of law enforcement, and that convictions are the
yardstick by which a court's success is measured. Indeed,
recently we have heard a government representative say,
``Acquittals? We can't have any acquittals.'' Such a notion is
inconsistent with our constitutional separation of powers,
under which courts guarantee an independent process, not an
outcome. Any tribunal purporting to do otherwise is not a court
and does not deserve to be called a court.
This fallacy aside, the courts' detractors are also raising
some more legitimate concerns about whether judges have
sufficient expertise over the unique subject matter of
terrorism trials, and whether the courts can adequately protect
the government's interest in preserving classified documents
for future intelligence-gathering purposes. These concerns are
not insurmountable under the system we have in place. The
argument about expertise ignores the fact that judges are
generalists. Just as they decide cases ranging from employment
discrimination to copyright to bank robbery, they are also
capable of negotiating the complexities of a terrorism trial.
As for the protection of classified information, courts are
guided by the Classified Information Procedures Act, which
played a prominent role during the trial of the so-called
Millennium Bomber, Ahmed Ressam, in my courtroom in 2001. While
I found the extensive precautions to be more than adequate in
that case, I would submit that any shortcomings in the law can
and should be addressed by further revision, rather than by
undermining the institution of the judiciary itself. I would
also add that courts are not insensitive to the compelling
needs of the government in criminal cases and apply existing
law and procedure with deference to those needs. As Justice
Robert Jackson said in the quote the Senator referred to
earlier, ``the strength and vitality of the Constitution stem
from the fact that its principles are adaptable to changing
events.''
In fact, there is good reason to think that the courts are
not only competent, but also uniquely situated to conduct
terrorism trials. Their insulation from the political branches,
accumulated institutional knowledge, and fidelity to legal
precedent ensure that no matter which way the prevailing
political winds blow, critical decisions pitting the interests
of community safety against individual liberty will be
circumspect and legitimate. I worry that with specialized
tribunals for suspected terrorists, governed by a separate set
of rules and procedures, we would create institutions
responsive to the perceived exigencies of the moment, upsetting
the delicate system of balances and checks that deter abuse and
promote faith in government. For example, if politically
vulnerable actors start redesigning courts, can we say with
assurance that popular pressure will not someday demand the
admission of hearsay evidence or statements obtained by harsh
interrogation techniques? Might we see the day when counsel for
the defendant cannot access information needed to mount a
defense or cannot appear at a defendant's behest without
undergoing a background check of undefined scope? Or when a
defendant might be represented by somebody who is not even a
lawyer? Such practices are not without recent historical
precedent and cannot be dismissed as mere paranoia once we peg
our judicial institutions to the ebb and flow of public
opinion.
I also worry that special terrorism courts risk elevating
the status of those who target innocent life. As I stated
during sentencing of Mr. Ressam in 2001, we have the resolve in
this country to deal with the subject of terrorism, and people
who engage in it should be prepared to sacrifice a major
portion of their life in confinement. Implicit in my remarks
was the message that despite the supposed grandeur of their
aims, these people surrender their liberty just like any
criminal who has earned society's condemnation.
At the outset, I stated that the Federal courts are not
just capable of trying suspected terrorists; they are an asset
against terrorism. At a time when our national security is so
intimately linked with our ability to forge alliances and
secure cooperation from countries that share or aspire to our
fundamental values, we can ill afford to send the message that
those values are negotiable or contingent.
I recently returned from Russia, where I have worked over
the past 25 years to promote judicial reform. The topic of this
most recent trip was jury trials, and the 5-day seminar
culminated in a mock trial conducted in the military court of
Vladivostok. Serving as mock jurors were a group of Russian law
students from Far Eastern University, no more than 19 or 20
years old, most with aspirations to be prosecutors in a system
struggling to define a role for the courts that is independent
from the state. That day, I felt that my ability to confidently
share the virtues of our independent judiciary and Constitution
with those who represent the future of Russia was more than a
personal privilege; it was in our country's own strategic
interest. I cannot help but wonder if I will be able to speak
with the same authority on future occasions if we lose
confidence in the very institutions that have made us a model
for reform in the first place.
Thank you, Senator.
[The prepared statement of Judge Coughenour appears as a
submission for the record.]
Chairman Leahy. Thank you. You know, you mentioned being
there in Russia, and I recently returned from a number of
countries abroad, and I raised some of the same questions,
especially countries that have become newly democratic nations,
trying to determine how they will do their court system. And
with the indulgence of Senator Whitehouse, I recall shortly
after the break-up of the Soviet Union, a group of Russian
jurists and others in my office were asking about our system.
One of the questions they asked, ``Is it true that people in
the United States can actually sue the Government?'' I said,
``It happens all the time.'' And they said, ``And is it true
that sometimes the Government loses?'' I said, ``It happens all
the time.'' ``And you then replace the judge? ''
[Laughter.]
Chairman Leahy. Very interesting questions. And when we
explained why we do not, I think the light bulb went on.
James Benjamin is a partner in the Washington law firm of
Akin Gump. He represents clients in a variety of Government
regulatory investigations and litigation, focused on civil
litigation and appellate work in State and Federal appeals
courts. Prior to joining Akin Gump in 2001, Mr. Benjamin served
in the U.S. Attorney's Office for the Southern District of New
York for 5 years. During his time there, he served as deputy
chief appellate attorney, was a member of the Securities and
Commodities Fraud Task Force in 2000, received an award for
superior performance from the Attorney General. He received his
bachelor's degree from a neighboring State, from Dartmouth, and
his law degree from the University of Virginia School of Law.
Mr. Benjamin, go ahead. And I should also note that all
statements, full statements, will be placed in the record of
each of you. Also, during the questions and answers--naturally,
you will all get a copy of the transcript, and if you see
things in there that you want to add to or may want to correct,
just notify us, and that will be changed.
Mr. Benjamin?
STATEMENT OF JAMES J. BENJAMIN, JR., PARTNER, AKIN GUMP STRAUSS
HAUER & FELD LLP, NEW YORK, NEW YORK
Mr. Benjamin. Mr. Chairman, members of the Committee, thank
you very much for the opportunity to be here this morning. I am
here to talk about a report on terrorism prosecutions that I
co-authored along with my law partner and close friend, Richard
Zabel, who is also present here this morning. Rich is sitting
right behind me, but if we could do it, he should be here right
next to me, because this was a team effort from beginning to
end.
Rich and I practice law together at Akin Gump in New York
City. Our area of expertise is white-collar criminal defense.
Before coming to Akin Gump, the two of us collectively spent
more than 13 years as Federal prosecutors in the Southern
District of New York. And I know that I speak for Rich as well
when I say that we are very proud of the time we spent working
in the Southern District under our former boss, Mary Jo White,
whom we admire greatly.
About a year ago, Human Rights First, a wonderful
organization that is a longstanding pro bono client of our law
firm, approached Rich and me and asked us to undertake a
comprehensive study of the capability of the Federal courts to
handle international terrorism cases. Last week, we published
the results of that study. We prepared our report in the hope
that we could make a contribution to the important public
debate about how best to prosecute and punish individuals
suspected of complicity in terrorism.
As the members of the Committee are well aware, in recent
years a number of people, including some of the distinguished
panelists here today, have proposed that terrorist criminals
should be prosecuted outside of the civilian court system,
either through the use of untested military commissions or in
an as yet undefined national security court. A significant
premise of these arguments is that the existing court system is
not equipped to handle terrorism cases. In our report, we set
out to test that premise, and we found, contrary to the views
of those who propose a new court system or a new detention
regime, that the existing Federal system over the years has
done a capable job of handling terrorism cases. In other words,
prosecuting terrorism defendants in the court system has
generally led to just, reliable results without compromising
national security or sacrificing rigorous standards of fairness
and due process.
Now, that does not mean that the justice system is perfect.
In some of these cases, the system has been subjected to
stresses and burdens. This was especially true in the 1990s,
when some of the issues in these cases were being litigated and
resolved for the first time. But the system has adapted to meet
the challenges presented by internatural terrorism cases.
I also want to make clear that we do not for a minute
believe that the criminal justice by itself is the answer to
the problem of international terrorism. Obviously not.
Terrorism is a complex and enormously important problem, and in
combating it, the Government must have at its disposal the full
range of military, intelligence, diplomatic, economic, and law
enforcement resources.
In approaching our research, our goal was to look beyond
rhetoric and generalizations and explore how the courts have
actually fared in the scores of criminal cases that have
actually been brought against alleged terrorists. In total, we
identified 123 terrorism cases going back to the 1980s. We
obtained detailed information about those cases. Based on that
foundation, we undertook a detailed review of the key legal and
practical issues that were presented in these 123 cases. Here
are some of our findings in very, very brief summary.
One: Prosecutors can invoke a broad array of substantive
statutes against alleged terrorists, including very important
statutes that were adopted by Congress in the mid-1990s and
thereafter.
Two: Over and over again, courts have successfully used
CIPA and other tools to balance the defendant's right to be
informed of relevant evidence against the need to preserve the
secrecy of classified information.
Three: The Miranda rule is manageable and does not affect
battlefield captures or intelligence interrogations.
Four: Courts have applied the Federal Rules of Evidence in
a flexible, common-sense manner, consistent with longstanding
precedent.
Five: Existing law provides an array of tools for the
Government to detain individuals it believes are dangerous.
And, six: Courts have imposed severe sentences on persons
convicted of terrorism crimes.
Mr. Chairman, we recognize that the project we set out to
undertake was large and that the subject matter is
controversial. We have done our best on a pro bono basis to
prepare a report that is objective and balanced. We hope our
report is of value in the ongoing debate about how best to
reconcile our commitment to the rule of law with the imperative
of assuring security for all Americans.
Thank you.
[The prepared statement of Mr. Benjamin appears as a
submission for the record.]
Chairman Leahy. Well, thank you, Mr. Benjamin. And we have
an advanced copy of the report, and I was able to go through
it, as has my staff. It is an excellent report, and I
appreciate it.
Mr. Benjamin. Thank you.
Chairman Leahy. Professor Amos Guiora--did I pronounce that
correctly?
Mr. Guiora. That is a great start.
Chairman Leahy. Good staff. He is a law professor at S.J.
Quinney College of Law at the University of Utah, teaches a
course in criminal law, ``Global Perspectives in
Counterterrorism,'' and religion and terrorism. He has also
taught at Case Western Law School, and he is the founding
director of the Institute for Global Security Law and Policy.
Professor Guiora served for 19 years in the Israel Defense
Force Judge Advocate General's Corps, held a number of senior
command positions, including Commander of the IDF School of
Military Law, Judge Advocate for the Navy and Home Front
Command, and legal advisor to the Gaza Strip. He received his
bachelor's degree from Kenyon College and law degree from Case
Western Reserve University School of Law.
Professor, it is good to have you here. Please go ahead,
sir.
STATEMENT OF AMOS N. GUIORA, PROFESSOR OF LAW, S.J. QUINNEY
COLLEGE OF LAW, UNIVERSITY OF UTAH, SALT LAKE CITY, UTAH
Mr. Guiora. Thank you for having me, Mr. Chairman.
Mr. Chairman, members of the Committee, it is indeed a
pleasure and a privilege to be here this morning, and I hope
you will find my comments helpful as we go forward with the
question of where to try terrorists, or at least how do we go
about trying suspected terrorists.
The question, when we ask ourselves where to try detainees,
requires answering a number of preliminary questions.
First, how do we define the current situation? Is it is a
war? Is it a police action? Is it an armed conflict short of
war? Without answering those questions, it is going to be very
difficult for this Committee to go forward with the question of
where to try terrorists.
The second question that must be addressed, Mr. Chairman,
is: What rights do we grant detainees?
And the third question is: How do we go about vetting the
detainees? Depending on who you want to believe, according to a
number of senior military officials, somewhere between 20,000
to 25,000 detainees are held worldwide either by the U.S. or on
behalf of the U.S. And the question of how to go forward cannot
be answered until we develop an objective criteria for
determining if a particular detainee presents a current or
future threat to the United States' national security. So those
are the preliminary questions.
Once we have decided how to go forward, then two additional
questions or two additional premises: One, I think that most
people, Mr. Chairman, will agree that we need to close
Guantanamo. But saying to close Guantanamo is an easy answer
and an incorrect answer until we have come up with an
alternative solution. What I propose, Mr. Chairman, in my few
minutes here this morning, is the following: the establishment
of an American Domestic Terror Court premised on the following:
One, that an international treaty-based terrorism court is
going to be an unworkable solution because I think the nations
of the world will be unable to define what terrorism is. If the
FBI and the DOD and the State Department and the Department of
Homeland Security cannot agree on what terrorism is, I think it
is going to be a tall order for the nations of the world to
define what terrorism is; and, therefore, an international
treaty-based terror court is unacceptable, or at least
unworkable.
The second obvious solution or option are the Article III
courts, and I think I am going to respectfully disagree with my
co-panelists. I think Article III courts are going to be an
unworkable solution once we close Guantanamo. I think the
numbers are such, even if there are, say, 25,000 and we vet and
we are down to 10,000 detainees, I think Article III courts as
they are presently constituted are going to be unworkable in
terms of trying 10,000 people.
The Domestic Terror Court solution that I proposed, Mr.
Chairman, has the following advantages, and those advantages, I
immediately add, are also very problematic. One, they will
enable the introduction of classified information that will be
heard in camera. Neither the detainee nor the defendant nor his
counsel will be in a position to hear that information. That
classified information can be used to bolster conviction. It
cannot be the sole basis of conviction.
In addition, Mr. Chairman, there will not be a jury trial.
In essence, with the proposal based both on the lack of a jury
trial and an introduction of classified information will enable
the process of beginning to try the thousands upon thousands of
detainees we are holding. You have to look at it, I suggest, in
the following way, Mr. Chairman. We today are holding thousands
of people in an indefinite detention which clearly violates the
United States Constitution. To turn those people over to the
Article III courts the way they are presently constituted means
that the waiting line will be endlessly long, which means that
we are going to completely keep the same process in place.
In proposing the Domestic Terror Court, what I suggest, Mr.
Chairman, is to take the world I come from, the Israeli
military, which you referred to in your introduction, taking
the Israeli military courts in the West Bank and the Gaza
Strip, along with the administrative detention process, merging
the two together, and thereby establishing a Domestic Terror
Court which would enable, on the one hand, a defendant to hear
the evidence and, in addition, in those cases where it is
necessary, to also introduce classified information, not to be
the sole basis of conviction but to bolster conviction.
Is this a perfect solution? The answer, obviously, is no.
On the other hand, having 25,000 people in worldwide detention
is also very much of a wrong solution.
As we go forward, as we think about how do we go about
beginning to solve this issue, I close with how I began.
Without carefully defining what the current situation is, we
are going to think of and view this issue tactically rather
than strategically. We as lawyers ultimately have the
responsibility, Mr. Chairman, to ask ourselves what situation
are we in, and only then can we begin asking ourselves how do
we go about trying these individuals. What is imperative is
that we develop a process premised on the closing of Guantanamo
after developing a solution, because absolutely it is wrong to
hold 25,000 people in the present context, which is nothing
more than indefinite detention.
And I propose, in conclusion, Mr. Chairman, that my
suggestion about a Domestic Terror Court is going to be the
most effective way within the context of the Constitution to
begin the process of trying those individuals who are suspected
of involvement in terrorism.
Thank you.
[The prepared statement of Mr. Guiora appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Professor.
Tom Malinowski is the Washington Advocacy Director for
Human Rights Watch--a position you have held since 2001, I
believe.
Mr. Malinowski. Yes.
Chairman Leahy. Prior to his work there, he served in the
Clinton administration as Special Assistant to the President,
senior director for foreign policy speechwriting at the
National Security Council. From 1994 to 1998, Mr. Malinowski
served as speechwriter for Secretaries of State Christopher and
Albright, was a member of the State Department policy planning
staff. He also served as an aide to the late Senator Daniel
Patrick Moynihan, my neighbor for years in the Russell
Building. He is a member of the Council on Foreign Relations.
Mr. Malinowski holds degrees from the University of California
at Berkeley and from Oxford University.
Please go ahead, sir.
STATEMENT OF TOM MALINOWSKI, WASHINGTON ADVOCACY DIRECTOR,
HUMAN RIGHTS WATCH, WASHINGTON, D.C.
Mr. Malinowski. Thank you, Chairman Leahy. Thank you for
having us here to look at this very important issue.
You have heard today from several witnesses who have
described the extraordinary strength of the American justice
system in dealing with terrorism cases. I agree with them and
with you whenever we have used the traditional criminal justice
system in this country, we have succeeded in putting dangerous
people away with both fairness and finality. When we have tried
to use alternative means, we have mostly failed. Just one
conviction in the last 6 years in the military commissions
trials, for example, an extraordinary record of failure.
So why do we face any dilemma at all when we look at this
question. I think there is one reason that is worthy of debate:
the fear that there are people out there who cannot be
prosecuted because they have not yet committed a crime or
because the evidence against them would not be admissible in a
normal court, but who nonetheless frighten us because of their
beliefs, their associations, or desire to do America harm. And
it is to deal with such people that some people have proposed
an alternative system of preventive detention.
Now, who are these people? There are not actually
thousands. In Guantanamo, we are dealing with probably, at
best, a few dozen people who might fit this profile and who
might be a dilemma for us once the camp is closed. But it is
important to note that the number of people living at large in
the world who fit the same profile is probably in the tens or
hundreds of thousands, people who passed through the camps in
Afghanistan at some point in the last 10 years or who share the
extremist ideology that gives rise to al Qaeda, who may
fantasize on these websites and chat rooms about taking part in
terrorist attacks.
Imagine if our troops went through a city like Kandahar,
Afghanistan, today or Karachi, Pakistan, and randomly rounded
up the first thousand young men that they met. I bet you that
at least a few dozen would fit this profile of potentially
dangerous but have not done anything yet. And if you took those
thousand and you put them in Guantanamo for 6 years, the number
deemed too frightening to release would probably rise even
higher.
So here is the real question: If we are holding today in
Guantanamo 10 or 50 or maybe even 100 of the countless
thousands of potentially dangerous but difficult to prosecute
people out there, should we set up a preventive detention
system just for them? Keep in mind that we have never done this
before as a country. Congress has never set up a formal system
of detention without trial to deal with national security
threats--not in the Civil War, not in the Second World War, not
in the Cold War when the survival of this country was at stake.
So would the benefit of incapacitating without charge or trial
a very small number of people who wish us harm in the world be
worth the cost of taking such an unprecedented step? I think
before we do, there are some hard questions we would need to
ask.
First, can Guantanamo detainees be moved to a new system of
detention without trial here in the United States without
making it seem as if we were simply transplanting Guantanamo,
with all of its problems, to U.S. soil? I believe the answer is
no. I believe that we would end up pretty much back where we
are right now, with detainees held for years without trial
based on evidence that they cannot see or confront, some of it
possibly obtained through coercion, in a system that does not
look like anything America has stood for or championed before.
Inevitably, you would have errors because you are using
unreliable intelligence, as all intelligence inherently is, to
keep people incarcerated. Mistakes would be uncovered. Once
again, people around the world would be focused on the
injustices that we commit instead of the crimes that the
terrorists commit.
A second question is whether we can create a new form of
preventive detention without enduring more years of frustration
and delay. Look at our experience with the military commissions
in Guantanamo. Six years into this experiment, they are still
beset by delays, challenges, and embarrassments. Some of those
are the result of a flawed plan, but many are simply the
inevitable result of creating any new system from scratch. If
we try again to create a new system from scratch, if we rely
again on trial and error to make it work, the likely result is
again going to be more error than trial.
Now, eventually, we might get a stable set of rules after
we finish with all the legal challenges and the legislative re-
dos. But how long are we prepared to wait for a system like
that to work? Can we afford more years of controversy in this
country about how to deal with suspected terrorists?
A third question is whether dangerous people are more or
less likely to be actually released under such a system? Now, I
think logically, if we were to set up a system where it would
be easy to deal with someone without going to the trouble of a
criminal trial, the Government would have a strong incentive to
put people in that easier system, including people who probably
can be prosecuted and put away in the traditional way. And then
we end up with a situation like Guantanamo where the Government
is under enormous pressure from around the world to deal with
these people, including to release them, and dangerous people
actually do get released sooner than they would be were they
put through the criminal system.
Another question is whether a preventive detention system
would effectively de-legitimize terrorists in the way that the
criminal justice system does. One thing all terrorists have in
common is that they do not want to be seen as ordinary
criminals. They want to be thought of as soldiers. They want
the attention and glory of being part of a great army at war
with a superpower on the global battlefield. They use that to
recruit more fighters. Remember how the 9/11 mastermind Khalid
Sheikh Mohammed, in his special tribunal in Guantanamo, reveled
in the status of being called an ``enemy combatant.'' ``You are
darn right I am an enemy combatant,'' he said. He was proud of
that. Contrast it to what happened to the Shoe Bomber, Richard
Reid, when he got his Federal trial before a courtroom in
Boston. He begged to be called a combatant, and the judge in
that case said, ``You are no soldier. You are just a
terrorist.'' And he sentenced him to life in prison. Isn't that
a better way to deal with such men, to let them fade into
obscurity alongside the murderers and rapists in our Federal
prisons?
[The prepared statement of Mr. Malinowski appears as a
submission for the record.]
Chairman Leahy. Thank you.
Our next witness is Benjamin Wittes. He is a Fellow and
Research Director in Public Law at the Brookings Institution in
Washington, a columnist with the New Republic online, and
contributing editor to Atlantic Monthly. From 1997 to 2006, Mr.
Wittes served as an editorial writer for the Washington Post,
reported for the Legal Times, Slate, and the Weekly Standard.
He has published numerous books, including the forthcoming
``Law and the Long War: The Future of Justice in the Age of
Terror.'' And Mr. Wittes graduated from Oberlin College.
Please go ahead, sir.
STATEMENT OF BENJAMIN WITTES, FELLOW AND RESEARCH DIRECTOR IN
PUBLIC LAW, THE BROOKINGS INSTITUTION, WASHINGTON, D.C.
Mr. Wittes. Thank you, Mr. Chairman and members of the
Committee, for inviting me to testify concerning what is, in my
judgment, the single most important unresolved legal policy
challenge affecting America's confrontation with international
terrorism: the design of an appropriate regime for detaining
alien terrorist suspects seized abroad.
It is difficult for me to overstate the scope and magnitude
of our political system's collective failure in detention
operations to date. A few years ago, in the winter of 2002,
almost nobody doubted the very common-sense proposition that
the United States is entitled to detain enemy forces in the war
on terrorism. Today, doubt concerning the legitimacy of war-on-
terrorism detentions is more the norm than the exception. The
reason is simple, and it is not that the rationale for these
detentions has grown less powerful. The current administration
has very obtusely refused to tailor the detention system
contemplated by the laws of war to the very unusual features of
the current conflict. Congress has declined over a lot of years
to create a better system legislatively. And the courts have so
far provided next to no guidance on the ground rules for
detention, save to emphasize the fact of their own habeas
jurisdiction.
The result is a recipe for public and judicial suspicion,
which is exactly what we have gotten: a system in which complex
questions of fact get resolved in closed proceedings that
produce a minimal administrative record based on information--
some of it undoubtedly flawed--that detainees have virtually no
opportunity to rebut.
So let me be as clear as I can be. That system has not
worked, and it cries out for reform by this body to make
detentions fairer, more transparent, and more defensible both
before the public and the courts.
But let me be candid on another point as well: The
appropriate reform will almost certainly not rely exclusively
on civilian prosecutions in American Federal courts as the
source of the power to detain the enemy. This is the case for
two distinct reasons:
First, relying exclusively on Federal court prosecution
would likely require the release of portions of the detainee
population at Guantanamo whose continued detention prudence
requires. Nobody outside of the executive branch knows exactly
how many of the current detainees are too dangerous to release
but could not face trial in Federal court. Without access to a
great deal of material that remains classified, you can kind of
only guess. But the number is almost certainly not trivial, and
it is probably not even small. Even under the somewhat relaxed
rules of the Military Commissions Act, prosecutors have
estimated that they might under ideal circumstances--and I
suspect this is optimistic--bring charges against only as many
as 80 detainees. So excluding those current detainees already
cleared for transfer from Guantanamo, that still leaves around
100 or so whom the military deems too dangerous to transfer yet
against whom charges are not plausible. Even if we assume the
military is being hopelessly conservative in clearing detainees
for repatriation, there is almost certainly still a gap, and
that gap are a bunch of dangerous people who want to kill
Americans.
The second reason, even if we could magically repatriate,
resettle, or free all current detainees, a pure prosecution
model would face prohibitive obstacles with respect to future
captures. Specifically, American forces often obtain custody of
detainees--either in the field or from allied governments or
militias--without knowing precisely who they are. For example,
Abu Zubaydah was captured by Pakistani forces in a safe house
raid with a handful of people around him. You can plausibly
imagine an extant warrant against, you know, such an al Qaeda
bigwig himself. But it is highly implausible to imagine pending
warrants against everybody who might accompany him or anybody
we might pick up under, you know, circumstances like that. If
the rule, however, is that anyone against whom charges are not
either outstanding or imminent must go free, you have to ask
the question what authority American forces would have even to
take custody of future non-battlefield detainees whom
opportunity might present to them. And I think the honest
answer is that they would have none.
For all its errors, in other words, the current
administration is not being eccentric in insisting on some
authority to detain the enemy outside of the four corners of
the criminal justice system. I do not think this necessity
should be a matter of national shame or embarrassment. American
law actually tolerates preventive detentions across a range of
areas, many of them--in fact, all of them, in my opinion, less
compelling than the situation of sworn military enemies of the
country against whom Congress has authorized the use of force.
That the laws of war apply uncomfortably to the task at hand
does not mean that no detention authority here is appropriate
at all. I think the next administration of either party is very
unlikely to forswear the power to detain the enemy entirely. So
the right question for this body is not whether to force it to
do so, but what appropriate rules for detention ought to look
like, what the substantive standards for detention ought to be,
and how to construct appropriate mechanisms of judicial review
for those detentions.
I want to emphasize that not all detainees require new law.
The law of war applies comfortably to a huge percentage of, you
know, those we are holding around the world. We are really
talking about a small subset of, you know, terrorist suspects
whom the laws of war apply to very uncomfortably. And defusing
the controversy over such detentions requires the creation for
each detainee of a rigorous set of factual findings and a
documentary record justifying the decision to hold that person;
that is a record available to the public and the press to the
maximum extent possible and reviewable in the courts.
To that end, I make the following suggestions in my book,
which I have fleshed out as well in my written statement:
First, to civilianize the detention regime by severing the
authority to detain this limited class of terrorists from the
laws of war and putting such detentions under judicial
supervision.
Second, to greatly enhance the procedural protections for
the accused.
And, third, to have whatever the judicial body that is
supervising it retain jurisdiction over each detention for as
long as it persists to ensure that detention remains necessary
and conditions of confinement are humane.
And I believe, as Professor Guiora testified, that the best
way to implement such a system would be through some kind of
specialized terrorism court or national security court. It is
an idea that others have proposed with varying levels of
specificity. Such a court would put detentions in the hands of
judges with all the prestige of the judicial system yet with
particular expertise in applying rules designed to protect
classified information and manage legitimate security concerns.
It is also, in my view, the best venue in which to try
terrorists accused of war crimes.
To sum up very briefly, the current administration's
reliance on a pure law of war model here has been a very
fateful error. But the attempt to revert to a prosecutorial
model for disabling terrorists would supplant that error with a
system unsuited to the challenges we currently face as a
society. The right answer is--as it has been since September
11--to design the detention system we need to handle the unique
situation that we face, and that is a task that only Congress
can accomplish
[The prepared statement of Mr. Wittes appears as a
submission for the record.]
Chairman Leahy. Judge Coughenour, let me ask you about
this, about the idea that we need some kind of a new legal
regime to deal with terrorism cases. If we use the Federal
courts, it may be too difficult. I have heard not just in
testimony here but in letters I have received that our
discovery rules are too generous, our evidence rules are too
strict, the burden of proof is too high, there is too much risk
of disclosing sensitive cases. But if we discuss what is the
easiest way to prosecute a case, of course, you can reach those
kinds of conclusions. I always thought when I was a prosecutor
what is the easiest way to prosecute. It might not be the
constitutional or legal way.
In your testimony, you say that it would be a grave error
to create a parallel system for trying terrorism cases, but you
thought our courts were uniquely suited to conduct terrorism
cases. You mentioned the Ahmed Ressam case. Now, he was
convicted. He was sentenced. He is now in jail.
Let's go into that a little bit. Was there anything--at any
time during that did you doubt our ability to use our Federal
courts, our Federal prosecutors, defense attorneys, our Federal
system to prosecute that case?
Judge Coughenour. Not for a heartbeat, Senator. We had
occasion to use the Classified Information Protection Act,
which was a cumbersome and difficult thing to work through in
dealing with classified information.
I had two reactions to that: one was you just roll up your
sleeves and you work your way through it, and we did; and,
second, I was, frankly, taken aback by the amount of
information that was considered to be classified for reasons
that just struck me as being absurd. For example, it was
considered to be classified that investigators stayed at a
Holiday Inn in Algeria when they interviewed members of the
Ressam family. We had a lot of difficult evidentiary issues
dealing with witnesses from Canada and the like. But, again,
you just roll up your sleeves, and you work your way through
it.
General Mukasey tried a very difficult trial in New York to
a conviction. Kevin Duffy tried another major case in New York
with difficult problems to a quite appropriate conviction.
It just chills me to the core to hear people talking about
rounding up someone who is deemed too dangerous to be released.
In the United States of America, do we stand for that
proposition? And how long do we hold them? How long do we
detain them? For the duration of the war on terror? Is there
light at the end of the tunnel?
We have been holding people now for 6 years, and it just
seems to me inconsistent with everything we stand for in the
United States to be detaining people because we think they are
dangerous but we do not have enough evidence to try them.
Chairman Leahy. That is interesting you talk about the
classified system. We now have spent several billions of
dollar, many, many more billions of dollars to classify things
than ever in our history, including when we were in world wars
and so on. Matters at the National Archives that had been on
their website for years and years are suddenly classified
matters that are on various administration websites. They are
open--actually used in speeches by administration officials,
but suddenly when the Congress has to ask, well, what really
happened, ``Oh, it is classified,'' and it is off the website.
I worry a little bit about that.
But let me ask, in my time left here, Mr. Benjamin, this
war on terror--and the judge referred to this--can justify a
lot of things, including classifying everything, and perhaps
intimidating people into accepting unnecessary restraints on
our civil liberties and turning our backs on the U.S. court
system. I want to just try to put the reality apart from the
rhetoric in this area. The strength of your report, instead of
beginning with a conclusion that our courts can handle
terrorism, you did the hard work of actually examining the
cases and the relevant data. In the hundred terrorism cases
that you reviewed in your investigation, what did you find out
about leaks of classified materials? Because Attorney General
Mukasey, before he held his current job, referred to the
problem of leaks in terrorism cases. He claimed specific
examples. What did you find? And did you find the problem of
leaks justified the creation of a national security court, some
kind of alternative criminal justice system?
Mr. Benjamin. Thank you, Senator. Certainly the issue
surrounding classified evidence is one of the features that
people point to and say, ``Well, that is why these cases are
different,'' and so we looked quite closely at that issue in
our research.
CIPA is the primary method for dealing with classified or
sensitive evidence in terrorism prosecutions. It is not the
only method. There are also protective orders that are
routinely used. Things are filed under seal, as is often the
case in all sorts of criminal prosecutions. And there are other
more case-specific devices that have been invoked, such as the
Fourth Circuit's very creative solution to some of the issues
that were raised in this area in the Moussaoui case.
What we found, Senator, is that CIPA has been invoked over
and over again in terrorism cases, including many of the most
important high-profile cases, such as the Ressam case that
Judge Coughenour so ably presided over; the Rahman case that
Judge Mukasey presided over, involving the blind sheikh; and
the embassy bombings case that Judge Sand presided over. CIPA
has been broadly upheld as constitutional. And, Senator, we
have not found a single instance of a security breach in any
terrorism cases where CIPA was invoked.
You referred to the op-ed piece that Judge Mukasey wrote
shortly before his nomination to become Attorney General. In
that piece Judge Mukasey cited two examples of security
breaches, but it bears noting that in neither case were the
CIPA procedures invoked. The first instance arises from one of
the cases in the early 1990s, the Rahman case, where the
prosecutor sent a list of co-conspirators--quite a long list, I
might add--to defense counsel prior to trial. That is
consistent with the normal rules of disclosure in a case where
a conspiracy is charged. And it turned out that that list of
co-conspirators made its way to Osama bin Laden in Sudan. And
actually, by the way, interestingly enough, the fact of the
transmission of that co-conspirator list to bin Laden was later
part of the Government's evidence in the embassy bombings case
a few years later.
Now, it is not a good thing, obviously, that the co-
conspirator list reached bin Laden, but it bears noting that
the Government did not invoke a protective order in that case
with respect to the co-conspirator list, did not make use of
the tools that might have been available. And I would submit,
Senator, that more importantly that incident is the exception
that proves the rule. This was 13 years ago, and this is sort
of the one example that is cited, and it is a case where CIPA
was not even applied.
The other example that Judge Mukasey cites involves, as he
described it, testimony in one of the two Ramzi Yousef trials.
We have looked hard at those trials, have not been able to
confirm the episode that Judge Mukasey recounts. There is some
reason to think that Judge Mukasey may have been intending to
refer to a different incident in the embassy bombings trial. In
the white paper, we recount in quite a bit of detail the facts
and circumstances from the embassy trial. And as we point out,
when you look at the chronology and the timeline--and this
involves phone records, satellite phone records--it is just not
possible that the introduction of that phone record evidence
had any effect on intelligence gathering because bin Laden had
stopped using the phone years before the evidence was offered
in court.
So, again, I have just tremendous respect and admiration
for Judge Mukasey, and so I hesitate to suggest that that
incident was misreported. There may be something else that he
is referring to that we have not been able to confirm. But
thank you.
Chairman Leahy. Thank you very much, Mr. Benjamin.
I was going to call on Senator Sessions next, but he has
left, so Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Let me ask a question for all of the witnesses, and it is a
long question, and I would ask unanimous consent, Mr. Chairman,
that the back-up material for the question be included in the
record, along with my question. But I do not need to refer to
it at this point.
Chairman Leahy. Without objection.
Senator Kyl. Last year, I wrote a minority report
dissenting from the Committee report for a bill that would have
extended civilian litigation rights to al Qaeda detainees, and
the minority report began by noting the following: At least 30
detainees who have been released from the Guantanamo Bay
detention facility have since returned to waging war against
the United States and its allies. A dozen released detainees
have been killed in battle by U.S. forces, while others have
been recaptured. Two released detainees later became regional
commanders for Taliban forces. One released Guantanamo detainee
later attacked U.S. and allied soldiers in Afghanistan, killing
three Afghan soldiers. Another former detainee has killed an
Afghan judge. One released detainee led a terrorist attack on a
hotel in Pakistan and also led a kidnapping raid that resulted
in the death of a Chinese civilian. This former detainee
recently told Pakistani journalists that he plans to fight
America and its allies until the very end.
Since that Committee report was published last fall, we
have seen another case of a Guantanamo detainee who was
released by the U.S. military and subsequently returned to
terrorism.
The following is from a May 8, 2008, article in the
International Herald Tribune: A former Kuwaiti detainee at the
United States prison camp at Guantanamo Bay, Cuba, was one of
the bombers in a string of deadly suicide attacks in the
northern Iraqi city of Mosul last month, the American military
said Wednesday. Commander Scott Rye, a spokesman for the
American military, identified one of the Mosul bombers as
Abdullah Salim Ali al-Ajmi, a Kuwaiti man who was originally
detained in Afghanistan and spent 3 years at Guantanamo Bay
before being released in 2005. Al-Ajmi had returned to Kuwait
after his release from Guantanamo Bay and traveled to Iraq via
Syria, Rye said, adding that the man's family had confirmed his
death.
Ajmi is one of several former Guantanamo detainees believed
to have returned to combat status, said another American
military spokesman, Commander Jeffrey Gordon, quoting, ``Some
have subsequently been killed in combat and participated in
suicide bomber attacks,'' he said.
Now, here is my question for all of you. Do you generally
agree that it is a bad thing that men like Ajmi, the Mosul
suicide bomber, have been released from Guantanamo Bay? And do
you agree that the United States should be allowed to detain
such men to prevent them from returning to the battlefield,
which in the case of terrorists, of course, could be almost
anywhere? Since I suspect we have started down at the left
hand, let me--and, by the way, for the record, Mr. Benjamin, I
am not aware that there is a protective order exception to the
Sixth Amendment confrontation right; you referred to the
failure of the Government to get a protection order. Would you,
for the record, confirm for me whether that is your
understanding or not? But let's don't take time with that right
now.
Let's start with Mr. Wittes and go on down the line.
Mr. Wittes. I do agree that there is a significant problem
that there have been a number--and the exact number is, as I
understand it, the subject of some dispute. But I agree that
there is a significant problem with people being released and
going back to the fight, absolutely. I further agree that it is
a necessary component of an international conflict that you do
get to detain the enemy in order to prevent that sort of thing.
I think I disagree with what I take to be the implication
of your question, which is that there is--that as a consequence
of those two points, that we should have a sort of unamended or
untailored law of war or paradigm here which issues judicial
review. I think one of the problems at Guantanamo has been--
Senator Kyl. Excuse me. Let me just make it clear that is
not implied. We have judicial review. We have an annual
determination of status, and there is a determination for each
of these individuals. So please do not read into my question--
Mr. Wittes. Fair enough. If that--
Senator Kyl.--an absolutely free--
Mr. Wittes. If that was not the implication of your
question, then I--
Senator Kyl. Let me just add to it. Underlining the
provisions that we already have in law for the determination of
status and review of that status.
Mr. Wittes. Yes, fair enough. I mean, I guess my point is
that I think one of the problems that we have had at
Guantanamo, in my opinion, is that the doubt as to the
legitimacy of these detentions has created enormous political
pressure to release people, and I think has led in some
instances to releases of people of whom I am, frankly,
terrified. And I can give you specific examples of that, but I
believe sort of the more process we create for Guantanamo--and,
obviously, I am not talking about a Federal court trial here,
but I think a more robust process would create more legitimacy
and, therefore, lessen the pressure to do sort of precipitous
releases, for which, I agree with you, we have paid a high
price and I suspect we will pay a higher price to come.
Mr. Malinowski. Thanks, Senator. Let me start by echoing--
Chairman Leahy. I would ask each person, because of the
time constraints, to answer the question, of course, but try
and keep it within a shorter framework, And, of course, we will
give you more--if you want to expand the record subsequently,
that will be done.
Mr. Malinowski. First, to agree with Mr. Wittes that it is
precisely because of the perception that we have an
illegitimate system that there is enormous pressure to release
people, including people who perhaps should not have been
released and I think probably would have been better dealt with
in a system that is of unquestioned legitimacy.
I think the second way I would answer your question,
Senator, is to point out that the fundamental problem we face
in this conflict is that there is no shortage of misguided
young men in the broader Muslim world who are willing and
capable of blowing themselves up for that awful cause. We may
have a few dozen in Guantanamo. There are thousands or tens of
thousands out there. We released hundreds of such people,
thousands at the end of the conflict with the Taliban in
Afghanistan, knowing that you cannot prevent terrorism
completely by seeking to detain everyone in the world who
wishes us harm, unless we are willing to build 10,000
Guantanamos; and that the problem of Guantanamo, and I think of
any system that is perceived to be illegitimate, is that it is
likely to create more such people than it takes off of the
battlefield. And I think one glance at any of the jihadi
websites that recruit people to the fight will confirm that
statement. They use Guantanamo and they will use any system
that looks like Guantanamo to recruit people to kill us. And
that is the problem we need to deal with.
Mr. Guiora. Senator Kyl, your question goes to the heart of
my proposal about establishing a Domestic Terror Court. During
the course of my 20 years' service in the Israel Defense
Forces, I was involved in innumerable detainee release
decisions. It ultimately requires objective criteria for who
can and who should not be released predicated on an
understanding of do they present a continuing threat to
America's national security. Without articulating and
subsequently implementing this objective criteria, we will be
releasing people simply because, and, indeed, you are
absolutely right, the chances of those people who have been
released without a proper check into what kind of a threat they
present, chances are that they will commit those same acts once
again.
On the other hand, there is no doubt that the process of
indefinite detention without robust, independent judicial
review as to whether or not that individual presents a
continuing threat to America's security is, at the end of the
day, I think, both unconstitutional and also, frankly, immoral,
meaning that if we are going to go forward in a rationale
fashion, the first thing we absolutely must do is to develop
this objective criteria. Then and only then can we begin the
process of determining who we will release and who we will not
release, and those who are not released, what judicial process
they go forward with is obviously what we are talking about
today. But without establishing criteria, it is very much a
catch-as-you-can, which, at the end of the day, is
extraordinarily dangerous to America's national security.
Mr. Benjamin. Senator, I could not agree more than when our
troops are engaged in the field as they are, it is fundamental
in the law of war that when they capture enemy fighters, they
can and should detain them so that they do not return to the
field. And the incident that you spoke about that was in the
paper 2 weeks ago was tragic and horrible. And as I said
earlier, we do not for a minute say that the criminal justice
system by itself provides the answer to all of the challenges
of terrorism. Certainly not. Rather, what we say is that for
individuals that the Government has zeroed in on and said,
``This is someone that we want to prosecute and punish--not
someone that we want to disable from returning to the fight,
but someone we want to prosecute and punish''--the existing
system has proved that it is capable of handling those cases in
the most challenging cases against the most dangerous people:
Khalid Sheikh Mohammed's co-conspirators, Osama bin Laden's co-
conspirators in the embassy bombings case, and some of the
others.
So we do not for a minute propose that the justice system
is a one-stop solution. Absolutely not.
Judge Coughenour. I cannot add a whole lot to what has
already been said and what I have already said, and that is
that I still think it is entirely inconsistent with the ideals
of this country to round people up because we think they might
be dangerous and to hold them indefinitely for the duration of
an ill-defined and undefined war, which could mean, in essence,
that we hold them for the balance of their natural lives based
upon a standard there that is they are dangerous. I just do not
think that is consistent with what we stand for in the United
States of America.
Chairman Leahy. Thank you.
Senator Whitehouse?
Senator Whitehouse. Thank you, Chairman. Welcome to all the
witnesses. I appreciate the very thoughtful testimony that we
have had here today. Like Senator Kyl, I would like to ask a
question and then ask each of the witnesses to respond to it.
Mine has to do with Guantanamo, which I think is pretty widely
understood by essentially all rational Americans to be a
terrible stain on our reputation and something that we would be
well advised to close as rapidly as possible. And if we were to
pursue that task, it would not be easy. This is not the simple
kind of mess that you just pick up off the rug and it is over.
I mean, we have kind of got ourselves in a lot worse to this
problem as a result of the 6 years of the experience with
Guantanamo.
As we unwind it, if we were to go about establishing a
commission or a committee to advise us, to advise perhaps the
next President, on what you would want to do to close
Guantanamo--which would raise obviously military issues. It is
being run, I think, better than ever before now by the U.S.
military. It raises intelligence issues related to what
remaining fragments of intelligence might be extracted from
folks down there. It raises significant judicial issues as to
what procedures should be imposed. It raises very live for
Americans civil liberties and fairness issues. And it raises
significant corrections issues as to where people who are going
to be kept incarcerated should now be kept.
And in the midst of all of that, I just want to have each
of you share with me your advice, if we were to establish such
a body, what sort of a charge would you want to ensure that it
had? What sort of expertise, what sort of make-up? Any ideas
you might have about such a body that would just be advisory,
but who should be on it? What should be on it? What issues
should they be sure to look at? What should a legislative
charge to it look like? Any thoughts you have in that area, I
would be very grateful to hear. I think I will go in the other
direction this time and start with Your Honor.
Judge Coughenour. Well, I will give you one limited idea,
and he will probably be upset with me, but he is an old enough
friend that I can do this. I would suggest you have in this
town a judge who is Chair of the FISA Court, Royce Lambert, who
would be a superb person to give you the views of the judiciary
on dealing with that problem.
Senator Whitehouse. I am sure you have made his day.
[Laughter.]
Mr. Benjamin. And at the risk of singling out another
friend, I would suggest that an experienced terrorism
prosecutor from an office like the U.S. Attorney's Office for
the Southern District of New York be included. And I would also
suggest that if such a commission were established, it should
not impede the decision to transfer some of the Guantanamo
detainees into the existing system for trial if the evidence is
deemed to be sufficient to bring civilian charges, as one would
think it probably is for at least some of those people.
Senator Whitehouse. I agree, and by the way, I appreciate
your nice words about Mary Jo White. I was her colleague in
Rhode Island while she served in New York. She is terrific.
Professor Guiora?
Mr. Guiora. Senator, I am a big proponent of a comparative
international perspective and analysis as to how to go forward,
and I think that no one country has the answer to terrorism, no
one country has the answer to counterterrorism. If you are
going to have such a commission, which I think is an excellent
idea, I would recommend having people who are equipped and able
to take a very close look at how other countries are going
forward in terms of their counterterrorism and legal policy
efforts. You can take away certain things from certain
countries, and you can also that way discern what works and
what does not work in the American constitutional context. But
I think if you are going to have only an American-only
perspective, it will be very limited and ultimately
ineffectual. And I think particularly in this day and age, it
is going to be critical to truly have a very broad-based,
comparative, international perspective, and what I call in the
book I wrote, ``Global Perspectives on Counterterrorism,'' I
there looked at five different countries--Israel, America,
Russia, Spain, and India. I think we can take something away
from each of those countries, and we can very much adapt that
or adopt that to the American constitutional context.
Senator Whitehouse. To put it mildly, we do not have a
record of success in America to justify relying only on our own
experience.
Mr. Guiora. I leave that to the Senator.
[Laughter.]
Senator Whitehouse. It seems pretty universal among the
witnesses' testimony. Mr. Malinowski?
Mr. Malinowski. Well, if you would like me to nominate
someone, I will suggest someone you may be surprised to hear me
nominate.
Senator Whitehouse. Well, not just people, but also ideas,
charges, issues they should be sure to look at.
Mr. Malinowski. First a person and then an idea. The person
I would nominate is General Petraeus, somebody who has served
on the front lines of the struggle, understands the non-
traditional nature of the threat that we face, understands
clearly, based on what he said and has written on the subject,
the necessity of detaining people on the battlefield who wish
our troops harm, but who has also spoken very eloquently about
the fact that you cannot detain your way out of this problem
and that you cannot win a non-traditional war or conflict like
this unless you sustain the moral high ground. I would love to
hear the perspective of the serving officer who has been
through this reflected in that kind of discussion.
In terms of ideas, you know, the one point I would make is
don't just focus on the nitty-gritty challenge of what to do
with detainee 1 and 50 and 48 in Guantanamo, but ask the big
question of who should we be detaining as part of this larger
struggle and how does detention fit into a strategy for
winning. And I think you might get some interesting answers
that are different from what you might expect if you start from
that perspective.
Senator Whitehouse. I appreciate it.
Mr. Wittes?
Mr. Wittes. I would like to start by saying on the
personnel question, I cannot imagine a better suggestion than
Mr. Malinowski's.
On the substantive dimension, I would actually say having a
very intense focus on Guantanamo detainee 1 and 50 and 48--I
think were the examples that he used--you know--
Mr. Malinowski. Don't look at 49.
Mr. Wittes. Just don't look at 49, right.
[Laughter.]
Mr. Wittes. I mean, I think the thing that really--when you
peel all the layers of the onion away, the thing that separates
his argument from mine, I think, is a sense of what the
universe of the people who are unambiguously too scary to set
free and not amenable to U.S. prosecution in U.S. Federal court
where it actually looks like. And I think you feel very
different about this question if you believe that that is a
very small group about whom the risks are very manageable, than
if you believe that it is a very large group or even a mid-
sized group about whom the risks are not particularly
manageable. And one of the real problems that has pervaded this
entire discussion--and I do not mean the discussion in this
room today; I mean the discussion over 6\1/2\ years--is that
the quality of the information that is public about, you know,
the universe of detainees is simply dreadful. And, you know,
the administration has to take a lot of responsibility for
that.
But I think one thing that any commission or advisory body
that you put together needs to look at is, you know--and I
notice that both Mr. Malinowski and I in our written statements
specifically said that you cannot responsible identify what the
universe of the population is at this stage, and that matters
enormously, because, you know, if it is five people and we
could just, you know, have the NSA and the CIA watching them
very carefully, I might be persuadable. If it is 120 people
and, you know, they are people who are different from Abu
Zubaydah only in one level below in the hierarchy and with--you
know, and the difference is really that the evidence that we
have is inadmissible--not that the evidence that we have is not
real--I think he might be persuadable if I--I don't know that.
You would have to ask him. But I think it would change the
discussion a lot if we knew what that universe of detainees
looks like.
Senator Whitehouse. Thank you, Chairman.
Chairman Leahy. Of course, it does not help that the
administration, even when they have talked about it, they have
changed their numbers so many different times that their
credibility is somewhat hurt. But then that falls into what I
had said earlier about classifying things that had been on
Government websites for years, been in Government publications
for years, even to the extent of things that had been
published, and classifying them just before a court hearing,
the credibility is not at its highest.
Mr. Wittes. I could not agree with you more.
Chairman Leahy. Thank you.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman, for holding this
hearing. I am sorry I could not be here earlier to hear the
testimony. I was chairing a hearing of the Africa Subcommittee
of the Foreign Relations Committee, but from what I understand,
you have heard powerful arguments today for why the traditional
American criminal justice system is a strong and effective tool
for trying terrorism suspects. The United States has
successfully prosecuted terrorist suspects in Federal courts,
and courts have provided the flexibility needed to address
complicated evidentiary and legal issues. The traditional
military justice system, too, is available. There is no doubt
that the administration's actions over the past 7 years have
created a difficult situation at Guantanamo Bay with respect to
a small number of detainees. But I am deeply concerned about
establishing an entirely new regime, with rules that would not
otherwise be tolerated in Federal court or military court-
martial and that would be subject to years of challenges, to
address this very narrow set of cases, when there is every
indication that we can effectively use our long-established
institutions.
Mr. Chairman, I ask that my full statement be placed in the
record.
Chairman Leahy. Of course, it will be.
Senator Feingold. Mr. Benjamin, when Congress was
considering the Military Commissions Act, some argued that we
could not rely on the traditional criminal justice system to
try terrorism suspects because it was unrealistic to expect
soldiers to read Miranda warnings to those captured on the
battlefield. Is this argument a red herring?
Mr. Benjamin. Yes, Senator, it is a red herring. I think
there are many, perhaps, popular misconceptions about the
Miranda rule. The Miranda rule does not apply to or regulate or
restrict in any way what soldiers do on the battlefield or what
intelligence officers do during intelligence interrogations. It
is a rule of criminal procedure that says when a law
enforcement officer conducts a custodial interrogation and when
a person who is being interrogated makes admissions that the
Government later wishes to offer in court, the person must
receive the Miranda warnings up front.
Miranda does not apply when foreign officials are
conducting interrogations. It was held in the embassy bombings
case, presided over by Judge Sand, one of the very best judges
in the Southern District, that Miranda applies when U.S. law
enforcement officials are conducting interrogations overseas.
But the FBI is trained to give Miranda warnings. They can give
them. And I can tell you from my own experience as a
prosecutor, lots and lots and lots of people waive their
Miranda rights and make statements.
Senator Feingold. Mr. Malinowski, would you like to comment
on that?
Mr. Malinowski. When I am asked this question, I always say
that every experienced judge and prosecutor I speak to who has
handled these cases believes that that is a red herring, and we
have heard from a judge and a prosecutor with far greater
experience than I have. I think clearly the civilian system can
handle these cases. When it has, it has succeeded. When we have
used an alternative system, we have failed. That is a pretty
clear track record.
Senator Feingold. I thank you for that, Mr. Malinowski.
Proposals for new preventative detention schemes have been put
forward by some thoughtful, well-meaning individuals, including
some of the witnesses here today. Some of these proposals have
incorporated quite a few procedural safeguards, including a
neutral decisionmaker and the right to counsel. Why doesn't the
inclusion of these types of safeguards address your concerns
about creating such a system?
Mr. Malinowski. I think in theory you could continue to
build procedural safeguards into the system until it looks
virtually identical to our existing system of civilian criminal
courts and military courts-martial, at which point it really
does not look like Guantanamo anymore. But then what is the
point? I mean, if you are going to do something that is very,
very similar to what we already have, why go to the
extraordinary trouble of creating a brand new system from
scratch? And that is why every real proposal for creating a
preventive detention system presumes such things as the
defendant is not going to see or be able to confront some of
the evidence that is being used to hold him potentially
indefinitely, which I think inevitably leads to the kind of
controversy that we want to avoid, the kinds of mistakes that
end up haunting us, and the inevitability of a system that I
think is unsustainable in the long term.
Senator Feingold. Mr. Benjamin, do you want to comment on
that?
Mr. Benjamin. Yes, I agree completely, and I think one of
the great strengths of the existing system is its credibility
and its adaptability. It is a system--and we speak of it as a
``system'' as if it is a monolith, but, of course, it is
composed of judges and lawyers and agents, and it relies on
statutes and case law and precedents and traditions that we
have inherited from those who have gone before us and that have
been adapted to deal with all of the changing circumstances
that we confront. And the record of these cases in this
particular area I think is particularly noteworthy for
demonstrating that the courts do have the capacity in a
credible, fair, reliable, and transparent way to handle these
cases.
Senator Feingold. Thank you very much.
Thanks, Mr. Chairman.
Chairman Leahy. Thank you, Senator. And I could not help
but think Judge Michael Luttig, who retired a few years ago to
take a position in the private sector, was known as one of the
most conservative judges on a conservative court, the Fourth
Circuit. He was involved in the Padilla case a few years ago.
He condemned shifting legal positions of the administration,
which was a constantly moving position. And this, of course,
involved an American citizen. He said the shifting and the
moving has consequences ``not only for the public perception of
the war on terror but also for the Government's credibility
before the courts in litigation ancillary to that war.'' And he
went on to say that this behavior in yielding to expediency
left an impression that may ultimately prove to be at
substantial cost to the Government's credibility. I mention
that, but we could put in dozens of such quotes from judges
across the political spectrum.
I thank you all for being here. Please, as you go through
this, if you find there is something further you wanted to add
based on questions, feel free to do so, and we will keep the
record open for a few days for that purpose.
Thank you very, very much.
[Whereupon, at 11:33 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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