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Hearing Of The Subcommittee On The Constitution Of The Senate Judiciary Committee - The Legal, Moral And National Security Consequesnces Of "Prolonged Detention"

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Location: Washington, DC

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SEN. FEINGOLD: (Off mike) -- come to order and welcome to this hearing of the Constitution Subcommittee entitled, "The Legal, Moral, And National Security Consequences of 'Prolonged Detention.'"

I want to thank the witnesses for being here and I especially want to thank my ranking member, Senator Coburn, who will be here, for his cooperation and the help of his staff in putting this hearing together on very short notice.

On May 21 President Obama gave an important national security speech at the National Archives. He devoted a major portion of that speech to the problem of the prison camp at Guantanamo Bay, Cuba. He reiterated that he intends to close that facility and I fully support that decision. The president, in my view, was absolutely correct when he said the following:

"Rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it."

I think the president was also correct in noting the difficulties in figuring out what to do with the approximately 240 detainees still held at Guantanamo. Some of those detainees he said can be tried in our federal courts for violations of federal law. Others will be tried in reconstituted military commissions for violations of the law of war. A third category of detainees have been ordered released by the courts. And a fourth category the administration believes can be transferred safely to other countries.

Finally, though, there is a fifth category of detainees that the president said cannot be tried in federal courts or military commissions, but the government believes they are too dangerous to release or transfer. For this small group of detainees the president said he is considering a new regime of what he called, quote, "prolonged detention," unquote, accompanied by procedural safeguards and the involvement and oversight of both the judicial and legislative branches of our government.

I was and remain troubled by where the president seemed to be heading on this issue. The previous administration claimed the right to pick up anyone, even an American citizen, anywhere in the world, designate that person as a so-called enemy combatant, even if he never engaged in any actual hostilities against the United States, and lock that person up possibly for the rest of his life unless he can prove -- without a lawyer and without access to all or sometimes any of the evidence against him -- that he is not an enemy combatant.

Now, that position was anathema to the rule of law. And while the president indicated a desire to create a system that is fairer than the one the previous administration employed, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.

I wrote to the president after his speech to express my concern and I'll put the full text of that letter in the record of this hearing. without objection.

My letter noted that the indefinite detention without charge or trial is a hallmark of abusive systems that we have historically criticized around the world. In addition, once a system of indefinite detention without trial is established the temptation to use it in the future will be powerful. Thus, if the president follows through on this suggestion of establishing a new legal regime for prolonged detention to deal with a few individuals at Guantanamo, he runs the very real risk of establishing policies and legal precedents that will not rid our country of the burden of the detention facility at Guantanamo Bay but instead I think merely sets the stage for future Guantanamos, whether on our shores or elsewhere, with potentially disastrous consequences for our national security.

Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice having been established not by a -- only by a largely discredited administration but by a successive administration with a greatly contrasting position on legal and constitutional issues.

The fundamental difficulty with creating a new legal regime for prolonged detention is that there is a great risk, particularly because some of the detainees for whom it would be used have already been held for years without charge, that it will simply be seen as a new way for the government to deal with cases it believes it cannot win in the courts or even before a military commission. Regardless of any additional legal safeguards, such a system will not be seen as any more legitimate than the one the Bush administration created at Guantanamo.

I do not underestimate the challenges that the president faces at Guantanamo. This is not a problem of his making and I appreciate how difficult the situation is. The president was right when he called dealing with the fifth category of detainees, quote, "the toughest single issue that we face," unquote. And he recognized creating a new system of prolonged detention poses unique challenges and that's why we're here today.

We've assembled a panel of distinguished witnesses to help us understand the implications of a new system of prolonged detention. Although the legality of such a system is crucial, that's not the only question. In a recent interview Daniel Levin, who was the acting head of the Office of Legal Counsel when that office was attempting to deal with requests for legal analysis of interrogation techniques that many believe are torture, put it quite succinctly. He said, "Obviously you can only do that which is legal, but that does not mean you should automatically do something simply because it is legal.

"

So I think we have an opportunity today to do what we need to do, which is to look at the question from all angles.

It's my view that a great deal of what was wrong with Guantanamo stemmed from an arrogance that the previous administration sometimes demonstrated about the rule of law. It established a prison that it thought was beyond the reach of the law and it asserted the power to put people in that prison with only the barest regard for the law.

President Obama clearly wants to take a different approach. He spoke at the National Archives of, quote, "constructing a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred."

This goal is admirable, but let's be very careful not to create a legal framework that is inconsistent with the very reasons we need a legal framework: to be true to our values and to regain the respect of the world for our approach to this conflict.

One final note and then I'll turn to the ranking member. When I wrote the president I indicated that I would invite a representative of his administration to testify at this hearing. On reflection I decided that to do so would be to ask the administration to publicly defend a position that it has not yet formally taken. Consideration of these very difficult questions is undoubtedly ongoing, and so I decided to hold this hearing as a way to help inform the administration's thinking and help make sure it has full information about the consequences of its decision.

I would of course welcome any response to the testimony and discussion we'll hear today, and I look forward to an open dialogue on these very difficult and important questions as the time for closing Guantanamo approaches.

With that, I'm pleased to recognize Senator Coburn. I thank him again for help and cooperation in arranging this hearing.

SEN. TOM COBURN (R-OK): Thank you, Mr. Chairman. I apologize for being late. I was working on a human rights issue associated with the Internet.

I'm pleased to join you at this second hearing of the Subcommittee on the Constitution. I understand that this hearing was prompted by a detailed letter you sent to President Obama following his speech he made on national security issues at the National Archives in May.

In that letter you explained very clearly your opposition to indefinite detention, an option the president described as being necessary to protect the American people. While I disagree with some of your conclusions, I appreciate your thoughtful approach to the issue and recognize the importance of this subcommittee to the debate.

We have before us an impressive and diverse panel of witnesses and I thank each of you for being here today. I would note, however, I am disappointed that the administration is not represented despite the chairman's request. The administration's insight on this and other important national security issues such as state secrets and the media shield are vital to ongoing congressional debate, and I am both puzzled and frustrated by the apparent unwillingness to engage Congress. In the future I hope to see the executive branch more involved in the debates affecting its most important responsibilities.

With respect to prolonged or even indefinite detention, I would note at that outset a few observations. In 2004 the Supreme Court in Hamdi versus Rumsfeld affirmed the authority of the United States to detain enemy combatants until the end of hostilities. The court recognized that by "universal agreement and practice," quote-unquote, the primary purpose behind the capture and detention of enemy combatants is to prevent their return to combat. Thus, so long as the current conflict is ongoing, and given that President Obama recently directed an additional 12,000 troops to Afghanistan, it appears that it is -- the United States has the authority to detain enemy combatants without trial.

Moreover, President Obama, like President Bush, has asserted the necessity of such prolonged detention. In his speech at the National Archives President Obama acknowledged the presence of detainees at Guantanamo who cannot be prosecuted, yet who posed a clear danger to the American people. He rightfully asserted that he will not release any such detainee, adding that they must be held to keep them from carrying out an act of war.

His choice and his challenge, as he described it, is to develop a legal regime appropriate to deal with these realities. The president described this category of the most dangerous detainees as the toughest single issue that he will face.

My preference would be that Congress give President Obama the support and assistance he needs to create such a framework, recognizing that successive presidents of different political parties agree prolonged detention without trial is absolutely necessary in certain circumstances. I hope today's debate about the propriety of the decision will prompt the administration to come forward with ideas so that we can all begin working on solutions for the future.

Thank you, Mr. Chairman, and I look forward to hearing our witnesses.

SEN. FEINGOLD: Thank you, Senator Coburn.

Will the witnesses just rise to be sworn? (Witnesses are sworn in.) Thank you.

Our first witness this morning will be Tom Malinowski, the Washington advocacy director for Human Rights Watch, one of the premier international organizations dedicated to defending and protecting human rights. Mr. Malinowski is an expert in United States foreign policy with degrees in political science from the University of California-Berkeley and Oxford University. He's previously served as special assistant to President Bill Clinton, as senior director for foreign policy speechwriting at the National Security Council, and as a member of the State Department's policy and planning staff.

I thank you for being here this morning and I'd ask all the witnesses to keep their remarks if at all possible to five minutes. We'll put your whole statement in the record.

You may proceed, Mr. Malinowski.

MR. MALINOWSKI: Thank you, Mr. Chairman, Senator Coburn.

Good to hear, Senator Coburn, that you were occupied with an issue involving human rights and the Internet. As you know, that's an issue near and dear to our hearts as well.

SEN. COBURN: Yes, I know it is.

MR. MALINOWSKI: Thanks for having us.

It's obviously a very difficult issue, but for all the complexity of it I want to argue today that it would be dangerous for us to continue with this experiment of indefinite detention without charge that we began in Guantanamo.

I think there's one broad point on which all of us here on this panel do agree and that is that under the laws of war enemy combatants who are captured in an international armed conflict can be detained without charge for the duration of that conflict as you said, Senator Coburn.

But the situation we're talking about here is different for a couple of important reasons.

First of all, in a traditional war between states it's easy to place boundaries around this extraordinary power to detain without charge so that governments don't take it as a license to detain preventatively anyone who they think poses a national security threat. In a traditional war we know where the battlefield is, we know who the enemy combatants are. But this is a fight with no recognizable battlefield or geographical boundaries, no clear distinction between civilians and combatants. So it's very hard to keep those boundaries secure and to limit preventative detention to people who are plainly soldiers in a war. And there is this dangerous prospect of embracing a theory that would allow presidents in the future to detain a broad range of enemies solely based on a prediction of their future dangerousness.

Second, in a traditional war preventative detention is allowed because it is the only way to keep enemy combatants from returning to the battlefield. Lawful combatants in a traditional war have not committed a crime and cannot be prosecuted and so detention without charge is the only conceivable way of keeping them from returning to the fight.

But for the detainees in Guantanamo, detention without charge was not the only option. The people there who we want to continue to detain have all been accused of doing things that are crimes -- committing or planning acts of terrorism, conspiring to commit them, providing material support, et cetera. So if we're considering preventative detention for these detainees it's not because they are lawful combatants who can only be kept off the battlefield via preventative detention. It's because some people now think that the option of prosecuting them may be harder to exercise because of the way in which these prisoners were treated in the past -- because evidence was not properly kept, because some of it was tainted by the use of torture, some of it is considered too sensitive to be used in court, et cetera.

So as President Obama has said, in deciding what to do with these prisoners we face this dilemma not because of his decision to close Guantanamo but because of the original decision to open it. We're facing it not because of who these people are but because of how their cases were handled in the past.

So one conclusion I draw from that is that whatever we do with the current set of detainees, the use of detention without charge in the future to detain al Qaeda suspects who are captured in the future is not necessary. We can avoid it by avoiding the mistakes that we've made in the last eight years by handling evidence properly, by moving as quickly as possible after capture to a criminal prosecution model.

But what about those legacy cases that we've inherited, the ones who are still sitting in Guantanamo, some of whom are obviously more difficult to prosecute than others? I don't want to minimize that difficulty. But I don't think we should throw away the possibility of using our established institutions of justice before we've even tried to do so.

And I think, if we're even going to consider going down that route, there are some very serious costs that we need to consider. The first of these, obviously, is the one that you mentioned, Senator Feingold, and that is the possibility that we'll create a perception that Guantanamo hasn't been closed, because the essence of that system was preventive detention without charge.

If we move it to the United States, even with additional safeguards, there's no question that people will say that the camp hasn't really been dealt with. And the costs of keeping the camp open will continue to be borne.

Another obvious cost is more years of frustration and more years of delay. Any such system will inevitably be challenged. Any such system will inevitably be tied up in court for a long time. A stable set of rules may emerge, but it will take a lot of time. How much more time do we have to get this right? I don't think we have too many more chances.

I think a third cost -- and this one may be counterintuitive -- is that the danger of having dangerous people released may be greater if we go with an alternative system. Because if I'm right and the system is challenged, if I'm right and these detainees will be able to attack the system based on its legitimacy, that system will not be stable.

And as we saw with the Guantanamo system -- in which 500 or more people were released, in part because the administration was under such pressure to get rid of these people -- the chances that dangerous people will be released will be greater.

And I think a fourth danger is that any time we treat these detainees as something special, any time we treat these detainees as the warriors they claim to be -- by giving them military rules, military detention, military tribunals -- we are actually reinforcing their narrative. We are reinforcing their story about who they are, that they are in fact warriors as part of a global struggle on a global battlefield against the greatest superpower in the world, a narrative that I think helps them recruit more people to their hateful cause. That is a trap that we should not fall into. The more we treat these people as not extraordinary, the more we treat them as the common criminals that they are, the more we de-legitimize them and the better we can fight them.

So I think this is a -- these are mistakes that we've made in the past. I don't think we should continue to make them. I think we have alternative institutions that have proven their capacity to deal with this problem. I think, at long last, we should give those institutions a chance to work.

Thank you.

SEN. FEINGOLD: Thank you very much, Mr. Malinowski.

Our next witness is David D. Rivkin, a partner in the Washington office of the law firm Baker Hostetler, where his practice focuses on international and environmental matters. He's also co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies, a graduate of Columbia Law School with a master's in Soviet affairs from Georgetown. Mr. Rivkin has served as associate executive director and counsel to President George H.W. Bush's Council on Competitiveness. So is he a general counsel at the Department of Energy and deputy director of the Department of Justice's Office of Policy Development under the Reagan administration.

Thanks for being here, Mr. Rivkin. And you may proceed.

MR. RIVKIN: Chairman Feingold, Senator Coburn, I'm also and pleased to appear before you today and testify at this important hearing.

I would say to deal with a question about morality as distinct from law, but we act morally when we do our absolute utmost within the bounds of law and proper policy to defend the United States and the American people from terrorism.

Thus, as this very long war continues to go on for the eighth year, it's vital to remember that the detainees we now have in custody in Guantanamo Bay and many other locations in Afghanistan and Iraq are not ordinary criminal suspects -- such as the individuals responsible for the original World Trade Center bombing or the Oklahoma City bombing in '95 -- who indeed must be charged and brought to trial or released in accordance with a set of rigorous constitutional and statutory requirements guaranteeing a speedy trial.

Instead, the detainees whom we -- talking about today -- and incidentally, it's important to underscore, we're not just talking about a finite body of legacy detainees; to the extent this war goes on, we'll continue to capture Taliban, al Qaeda and operatives from affiliated organization. It's very difficult to fight a war if you're not going to capture people, especially since under international war law you are obligated to provide them with opportunity to surrender.

So we're talking about unlawful combatants and unlawful belligerents. So let me, by the way, say with due respect to my good colleague Mr. Malinowski, I don't think we give them any homage by calling them unlawful combatants, because unlawful combatants do not enjoy any honor or prestige associated with lawful combatancy. They're criminals, but they're worse than criminals. They're more than criminals. They're certainly worse than muggers and rapists and bank robbers. So I don't think, if you grasp the concept of unlawful combatancy, calling anybody that -- the enemy of humanity, somebody who is a pirate or worse -- gives this person any honor.

I'm glad we all agree on this panel that unlawful combatant category remains alive and well today. It's a venerable concept. Certainly I occasionally have to deal with the question that people think that it was somehow invented in the Bush administration. Of course it was not. It has been with us for hundreds of years. It has been upheld by numerous courts around the world, including American courts and the Supreme Court. So it's firmly grounded in international law.

Now, unlawful combatants although they're not entitled to the privileges of legitimate prisoners of war, i.e. POWs, under Geneva Conventions, can, like POWs -- again, I don't think there's any serious question about it -- be detained until the conclusion of hostilities.

And in this regard, although unlawful combatants may be punished for their unlawful belligerency because they don't have combatant immunity, there's no rule of international law requiring that they be punished, and their detention for the duration of hostilities is certainly supported by that same rationale, as with regard to POW, to prevent their return to fight.

Incidentally, again, with all due respect to Mr. Malinowski, I don't know of any rule of international law that suggests that that only applies to, quote, "international armed conflicts." I mean, if you assume that the Supreme Court is right in the Hamdan case in classifying our conflict with al Qaeda is not of international nature.

The whole thrust of international humanitarian law since World War II has been to grant the same privileges to participants in internal armed conflicts as the one in international. So I would be very surprised if anybody from ICRC would agree with a proposition if in civil war, for example -- which is a classic example of a conflict not of international nature -- if you capture a belligerent in civil war that that person cannot be held for the duration of that war.

I also think, how to put it gently, that the notion that we have another viable opportunity of prosecuting people is, well, myopic, would be to put it gently. And the reason for it has nothing to do with the legacy problems and torture. It has to do with very simple proposition: that it is virtually impossible, Mr. Chairman, to obtain a corpus of evidence, forensic and otherwise, that would suffice to hold the person -- bring that person successfully to trial. You're not going to run a CSI Kandahar and exposing American -- in the process of trying to get that evidence you expose the American servicemen to additional danger, because the longer you linger on in the battlefield, particularly in the context of special force operations, the higher is that danger.

So to me, the notion that there's this other alternative of prosecuting them is somehow -- (laughs) -- is not viable. We cannot fight this war if we're not going to have a military detention paradigm. A military detention paradigm requires that lawful and unlawful combatants captured in this conflict have to be held for duration of it.

I don't have time -- in my prepared remarks I go through some historical examples -- but we've had long wars -- eight years, five years, 16 years in the case of Vietnam. This may be a longer war, but that does not alter the legal paradigm.

The only point on which I agree with my colleagues is, yes, there is indeed a greater possibility of a mistake. I would stipulate that, because, I mean we're talking about people fighting out of uniform trying to obscure their belonging to a particular group, versus somebody wearing a uniform. You can make a mistake. But the way to deal with it is not to throw out this framework. That's why we give captured enemy combatants unprecedented, historically unprecedented degree of due process.

In no war in American history have captured enemy combatants (drew?) habeas. So we've already given people plentiful due process rights to ensure we have the right ones.

And incidentally, the whole business about dangerousness: You don't have to be a judge to be dangerous. The fact that we're doing that -- we're looking to see what danger is created by returning people to the battlefield -- is not required by international law. As a matter of international law, if you're a captured enemy combatant, you're being held for the duration of hostilities, even if you never fired, Mr. Chairman, a gun in anger, even if you're a cook, okay, even if you're a payroll processor -- because that's how it works -- as long as you are a member of an enemy combatant organization, your particular function is irrelevant. Otherwise during World War II everybody, you know, who was driving trucks and sewing uniforms would have been released. That's not how it works.

So the traditional paradigm works. I don't think it is particularly controversial, and I see no other viable alternatives.

Thank you.

SEN. FEINGOLD: Thank you, Mr. Rivkin.

Our third witness is David Laufman, a partner in the Washington office of the law firm Kelley Drye & Warren, where his practice focuses on government investigations.

A graduate of Georgetown University Law Center, Mr. Laufman has had a long and distinguished career in public service, beginning as an intelligence analyst at the CIA and most recently as an assistant U.S. attorney for the Eastern District of Virginia, where he prosecuted numerous high-profile national security cases.

In 2005 Mr. Laufman was the lead trial counsel in the United States government's successful prosecution of Ahmed Omar Abu Ali, an American citizen convicted of providing material support and resources to al Qaeda, conspiring to assassinate the president of the United States and conspiring to hijack and destroy aircraft, among other charges.

For his work on this case Mr. Laufman received the John Marshall Award for Outstanding Legal Achievement in Litigation, the highest honor for excellence in litigation awarded by the Department of Justice. Mr. Laufman also represented the United States in the U.S. versus Chandia and U.S. versus Biheiri and U.S. versus Kahn, known as the Virginia Jihad case, all significant terrorism prosecutions.

I should also add that from 2001 to 2003, Mr. Laufman served as chief of staff to Deputy Attorney General Larry Thompson, where he helped coordinate responses to the terrorist attack of 9/11.

I thank you for being here, Mr. Laufman. You may proceed.

MR. LAUFMAN: Thank you, Mr. Chairman, distinguished Ranking Member Coburn. Thank you for the opportunity to testify before you today.

I'm coming to this issue from a slightly different approach, as former prosecutor, as a former Department of Justice official. And those will be the experiences that inform my judgments today.

I would say to you that while it would not be appropriate or feasible to adjudicate all terrorism cases in the criminal justice system, that terrorism prosecution should be brought into Article III courts whenever possible.

First, both before and since September 11th, the courts have demonstrated their ability to handle complex terrorism cases. They have applied long-standing jurisprudence from criminal and constitutional law to resolve difficult issues such as chain of custody for evidence seized in foreign countries, by foreign law enforcement authorities, claims of coerced confessions, and the application of the confrontation clause to testimony given overseas by foreign government officials.

Utilizing the Classified Information Procedures Act, or CIPA, the courts have guarded against the improper disclosure of sensitive intelligence information. And rather than complain about the additional administrative burdens that terrorism prosecutions sometimes impose on the courts, judges have looked upon these cases as an opportunity to shoulder their coordinate responsibility for meeting a national challenge and to demonstrate the strength and adaptability of the American criminal justice system.

Second, bringing terrorism cases in Article III courts under well-established constitutional standards and rules of procedure and evidence confers greater legitimacy on these prosecutions, both here and abroad. And the importance of that legitimacy should not be minimized.

Third, criminal proceedings also play an important role in educating the American people and the world about the nature of the threat we face.

In the al Marri case, for example, it was the defendant's guilty plea in April of 2009 to conspiracy to provide material support to al Qaeda, which resulted in the public admissions, nearly six years after his initial apprehension, that al Marri had been recruited by Khalid Sheikh Mohammed -- then the operations chief of al Qaeda -- to assist with al Qaeda operations in the United States -- that al Marri had been directed to come to the United States no later than September 10th, 2001, to operate as a sleeper agent, and that he had received sophisticated codes for communicating with KSM and other al Qaeda operatives while he was in the United States.

With respect to existing non-military detention options, because that is my focus here, the government currently has only three options for detaining individuals suspected of terrorist activity in a non- military detention system.

Depending on the individual's nationality, if the individual has been charged with a crime, the government can move for pretrial detention under the Bail Reform Act. If no charges have been brought and the individual is an alien, the government can detain the individual administratively under an immigration removal statute. If the individual is a U.S. person, the only other recourse is detention under the material witness statute, which is problematic. That's it.

As to pretrial detention, it is axiomatic that in order to obtain pretrial detention, under the Bail Reform Act, the government must first charge and individual with a federal crime. Under Department of Justice policy, however, a prosecutor may bring charges only if he or she believes that the admissible evidence -- the admissible evidence -- will probably be sufficient to obtain and sustain a conviction.

In a terrorism case, the need to make this early determination can be especially formidable. Terrorism investigations are often driven by threat analysis. And threat assessments often are based on intelligence information such as communications intercepted under the Foreign Intelligence Surveillance Act, informant reporting and information provided by foreign law enforcement and intelligence authorities.

Sometimes the government has the luxury of building a case over a period of months to develop evidence that is admissible in the criminal prosecution. But often it doesn't, because of the nature of the threat, the credibility of information regarding a potential attack or the perceived imminence of an act of violence. And in those cases, the government often needs options for detaining individuals before it may be ready to bring criminal charges in order to protect the public safety.

The rules regarding the detention of a person who has been charged with a federal crime are favorable to the government in terrorism cases. In support of a request for detention, the government can submit hearsay and other information that would be inadmissible at trial because the federal rules of evidence do not apply at detention hearing.

A court ordinarily must take into account several factors in determining whether to detain a defendant pending trial. And the government ordinarily has the burden of proof. But there is a statutory, "rebuttable" presumption in favor of detention in a terrorism case if there is probable cause that the defendant committed a specified federal crime of terrorism.

Although magistrate judges are not rubber stamps for the government in detention hearings, the government has been largely successful in obtaining pretrial detention in terrorism cases, sometimes for many months, when trial is delayed. And where judges have denied government motions for detention, they typically have imposed restrictive and sometimes draconian conditions of release.

With respect to material witness warrants: As the court knows -- as you know, under the material witness statute, a court may authorize an arrest warrant if the government files a sworn affidavit establishing probable cause that the testimony of a person is "material in a criminal proceeding" and that "it may become impracticable to secure the presence of the person by subpoena."

There is no express time limit in the statute for the length of detention, but the government must submit a biweekly report to the court in which it lists every material witness held in custody for more than 10 days pending indictment, arraignment or trial and states why the witness should not be released with or without a deposition being taken.

After the September 11th attacks, the government aggressively used the material witness statute to detain individuals in connection with terrorism investigations, at least several of whom were subsequently charged with crimes. But what the committee must understand is that the material witness statute was not intended to serve as a substitute for pretrial detention.

In the case of United States versus Awadallah, the defendant's name and telephone number had been found on a piece of paper in a car abandoned at Dulles Airport by September 11th hijacker Nawaf Alhazmi.

Reversing the district court, the U.S. Court of Appeals for the 2nd Circuit found that the defendant's detention for several weeks on a material witness statute warrant was not "unreasonably prolonged," but it cautioned that "it would be improper for the government to use the material witness statute to detain persons suspected of criminal activity for which probable cause has not yet been established."

Lastly, immigration detention: The government does have additional tools to detain foreign nationals in terrorism cases. Upon a warrant issued by the attorney general, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. The attorney general has broad discretion in exercising this authority, and detention is mandatory where the alien is reasonably believed to have engaged in activity that endangers the national security of the United States.

In the immediate aftermath of 9/11, Mr. Chairman, the Department of Justice used the alien removal statute to arrest and detain numerous foreign nationals suspected of engaging in terrorist activity.

Utilizing the alien removal statute can buy the government substantial additional time to determine whether to pursue criminal charges against an alien defendant.

In Zadvydas versus Davis, a case decided a few months before the September 11th, the Supreme Court construed the law to limit the period of detention to the time reasonably necessary to secure the alien's removal, with six months presumed to be a reasonable limit. But the court noted that the case did not involve, quote, "terrorism or other special circumstances where special arrangements might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security," end quote.

With that, Mr. Chairman, I'll, in the interest of time, stop.

Thank you.

SEN. FEINGOLD: Thank you, Mr. Laufman. I appreciate the presentation.

Our next witness is Elisa Massimino, the CEO and executive director of Human Rights First, one of America's most influential human rights advocacy organizations. A graduate of the University of Michigan Law School, with a master's degree in philosophy from Johns Hopkins University, Ms. Massimino teaches human rights advocacy at the Georgetown University Law Center here in Washington. She grew up in a military family and was instrumental in assembling a coalition of retired generals and admirals to speak out publicly against policies authorizing the torture of prisoners in U.S. custody.

Ms. Massimino, we appreciate your presence here this morning and you may proceed.

MS. MASSIMINO: Thank you, Mr. Chairman, and thank you, Ranking Member Coburn, for convening this hearing. I really appreciate the opportunity to be here to share the views of Human Rights First on these issues and in particular to address how the choices on detention policy going forward will impact U.S. national security and international standing.

The use of arbitrary and unlimited detention by the previous administration has undermined America's efforts to defeat terrorists. It has served as a powerfully effective recruiting advertisement for al Qaeda. It has strengthened the hand of al Qaeda rather than isolating and de-legitimizing them in the political struggle for hearts and minds. It has undermined critical cooperation with our allies on intelligence and detention, and it has done considerable damage to the reputation of the United States, undermining its ability to lead on counterterrorism and other key national priorities.

Now, President Obama has stated that he wants to reverse the negative impact of these policies.

In his speech last month at the National Archives, he made clear that trust in our values and our institutions will enhance our national security, not undermine it, but I believe that vision could be undermined by the continued use of military commissions and detentions without trial and would deprive us of the ability to, as he said, enlist the power of our fundamental values, proving counterproductive and not durable.

Such efforts are also unnecessary in light of the existing laws that provide an adequate basis to detain terrorism suspects and try them for crimes of terrorism before regularly constituted federal courts.

In January, Admiral Blair, Dennis Blair testified before the Senate Committee on Intelligence that, quote: "The detention center at Guantanamo has become a damaging symbol to the world and it must be closed. It's a rallying cry for terrorist recruitment and it's harmful to our national security, so closing it is important for our national security," end quote.

But the damage done by Guantanamo is not because of its location. It stems from the discredited policies of unfair trials and detention without charge. If those policies are continued, even in a somewhat modified form, Guantanamo will not be closed, it will just be moved.

Proponents of preventive detention argue that those ready to do harm to the United States should be treated as warriors under the laws of war, yet the decision to label all Guantanamo prisoners as combatants engaged in a war on terror has unwittingly ceded an important advantage to al Qaeda, supporting their claim to be warriors engaged in a global battle against the United States and its allies.

Accused 9/11 planner Khalid Sheikh Mohammed reveled in this status at his combatant status review tribunal hearing at Guantanamo in March of 2007. He said: "For sure, I am America's enemy. The language of war in the world is killing. The language of war is victims."

Now, those whose job it is to take the fight to al Qaeda understand what a profound error it was to reinforce al Qaeda's vision of itself as a revolutionary force engaged in an epic battle with the United States. Former CIA case officer and counterterrorism expert Mark Sageman said, quote: "Terrorist acts must be stripped of glory and reduced to common criminality. It is necessary to reframe the entire debate from imagined glory to very real horror."

Likewise, General Wes Clark stated, along with 19 other former national security officials and counterterrorism experts, they said: "By treating such terrorists as combatants we accord them a mark of respect and dignify their acts and we undercut our own efforts against them in the process. If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. The more appropriate designation for terrorists is not unlawful combatants," they said, "but the one long used by the United States: criminal," end quote.

And last June, Alberto Mora, former Navy general counsel, testified that, quote, "Serving U.S. flag-rank officers maintain that the first and second identifiable causes of U.S. combat deaths in Iraq, as judged by their effectiveness in recruiting insurgent fighters into combat, are, respectively, the symbols of Abu Ghraib and Guantanamo."

This vision is reinforced in the updated Army-Marine Corps Counterinsurgency Manual that was drafted under the leadership of General Petraeus and incorporated lessons learned in a variety of counterinsurgency operations including Iraq and Afghanistan.

It stresses repeatedly that defeating non-traditional enemies like al Qaeda is primarily a political struggle and one that must focus on isolating and de-legitimizing the enemy rather than elevating it in stature and importance. As the manual states, "It's easier to separate an insurgency from its resources and let it die than to kill or capture every insurgent. Dynamic insurgencies can replace losses quickly. Skillful counterinsurgents, which we seek to be, must thus cut off the sources of that recuperative power.

As long as Guantanamo detainees are held in prolonged detention without charge or tried before extraordinary military commissions, the facility's legacy will continue to nurture that recuperative power of the enemy and focus will remain on how the procedures deviate from those in criminal trials before regularly established Article III courts and not on the heinous acts of those we seek to try.

Guantanamo has become a symbol to the world of expediency over fundamental fairness and of this country's willingness to set aside its core values and beliefs. The reputational damage caused by Guantanamo has very practical ramifications for our counterterrorism operations. If U.S. detention policies continue to fall short of the standards adhered to by our closest allies, then those policies will continue to undermine our ability to cooperate in detention and intelligence operations.

In his June testimony, Albert Mora described in detail how concerns about U.S. detainee policies damages U.S. detention operations by leading our allies to hesitate to participate on combat operations, to refuse to train on joint detainee operations, and to actually walk out on meetings regarding detention operations.

The Guantanamo detentions have shown, as three retired flag officers said in a letter to the president last month, which I asked that be included in the record --

SEN. FEINGOLD: Without objection.

MS. MASSIMINO: -- stated: "The Guantanamo detentions have shown that assessments of dangerousness based not on overt acts, such as in a criminal trial, but on association are unreliable and will inevitably lead to costly mistakes. This is precisely why national security preventive detention schemes have proven a dismal failure in other countries. The potential gains from such schemes are simply not great enough to warrant departure from hundreds of years of Western criminal justice traditions."

In conclusion, there has not yet been a full accounting of the strategic and operational costs of the failed Bush administration policies on prisoner treatment, but there's plenty of evidence to suggest that continuing down the road of prolonged detention without trial will undermine national security and hamper counterinsurgency efforts against al Qaeda.

It will also seriously impede the Obama administration's efforts to turn the page on the past and successfully implement a new strategy to combat terrorism that brings the United States and its allies together in pursuit of a common goal.

It's time for us to learn from the mistakes of the past and chart a new course, a smarter strategy, one that draws on all the elements of national power. This is a real turning point for our country and I urge you to seize it and ensure that we do not do to ourselves what al Qaeda could never do on its own: upend our constitutional system and values by establishing an entirely new system of detention without trial in the federal law and on American soil.

Thank you.

SEN. FEINGOLD: Thank you, Ms. Massimino.

Our next witness is Richard Klingler, a partner in the Washington office of the law firm of Sidley Austin, where his practice focuses on national security matters and complex litigation. A Rhodes scholar and a graduate of Stanford Law School, Mr. Klingler clerked for Judge Kenneth Starr on the D.C. Circuit and for the path-breaking Supreme Court Justice Sandra Day O'Connor.

During the George W. Bush administration, he served as general counsel and legal adviser for the National Security Council and as senior associate counsel to the president.

I thank you for being here, Mr. Klingler, and the floor is yours.

MR. KLINGER: Thank you, Mr. Chairman, Ranking Member Coburn, for allowing me to present my views today regarding the lawfulness, morality, and national security necessity of ongoing or indefinite or prolonged detention.

Detention for this purpose means detention by our military of enemy combatants: persons who our military has concluded have waged or threatened war against our troops, citizens and allies. The combatants at issue are members of al Qaeda and related terrorist organizations that pose a significant threat of violence to U.S. citizens.

The main purpose of detention is to keep those who would harm U.S. citizens and troops from returning to the fight, and detention appropriately continues until that threat no longer exists. In this sense, wartime detention is always indefinite or prolonged until conflict ceases. We have fought long wars and wars against unconventional forces. The conflict against terrorist organizations is not different in kind.

The debate over indefinite detention often wrongly focuses on Guantanamo Bay. Prolonged detention is not just something proposed for the future for a small subset of Guantanamo detainees. It is instead a practice that this administration is already conducting on a widespread scale in Afghanistan and elsewhere, will continue to pursue for hundreds if not thousands of detainees for many years, and has already defended repeatedly in federal court.

The lawfulness of ongoing detention of enemy combatants is clear and well established. In short, such detention is a lawful incident of war, authorized whenever the exercise of war powers is proper. The Supreme Court has reached this conclusion for this specific conflict. The current administration has correctly argued that "long-standing law of war principles recognize that the capture and detention of enemy forces are important incidents of war," that our enemies are not confined to fixed battlefields in Iraq and Afghanistan and that Congress has through the AUMF authorized ongoing detention.

Challenges to the detention of enemy combatants, relying on the criminal law or otherwise, usually depend on rejecting the premise that we are truly at war one a very wide scale. That conclusion would surprise our troops in Afghanistan, Iraq and many other places.

It would particularly surprise our commander in chief. He recently confirmed that, quote, "We are indeed at war with al Qaeda and its affiliates," and that because al Qaeda terrorists and their affiliates are at war with the United States, those that we capture, like other prisoners of war, must be prevented from attacking us again," close quote.

Perhaps now that this administration has endorsed ongoing detention, as it has nearly every one of its predecessor's once controversial counterterrorism policies, we can more readily accept the legitimacy of these practices.

The most important national security benefit of detaining enemy combatants is simple but essential: to meet our moral commitment to ensure that those detained do not directly or indirectly attack our troops or citizens, here or abroad. Continued detention also ensures that our military and intelligence forces can and will continue to seek to detain additional combatants.

Other benefits become clear in light of the alternatives. If standards for detention are increased, or if detention were abandoned or restricted, at least three consequences would follow.

First, detention would be outsourced. U.S. officials would rely on foreign allies to capture, interrogate and detain enemy combatants and recent reporting shows that this is already occurring. Detainees are less likely to be captured, more likely to be released prematurely, and less likely to be treated well.

We should worry that this administration may be failing to detain newly discovered al Qaeda members and supporters in certain circumstances but having other nations do so instead.

Second, mistaken release of detainees would occur more frequently. Even under the current standard, many detainees released by the U.S. have gone on to become al Qaeda and Taliban leaders, a suicide bomber and combatants against our troops.

This administration's Defense Department recently detailed a significant threat of the problem. Even so, none of the detainees released from Guantanamo has attacked citizens in the United States -- yet.

Third, detainee -- excuse me -- detention would be side stepped. Enemy combatants may be left in the field because criminal standards of proof have not been satisfied, placing our troops and citizens at risk. This was the principal flaw in our pre-9/11 counterterrorism policy.

Or the military may choose instead to use the force of arms against the combatant when capture may prove pointless or risky. Some suggest that we can avoid these tough choices by relying exclusively on criminal proceedings.

The president has largely mooted that argument by stating that, "We're going to exhaust every avenue that we can to prosecute those at Guantanamo who pose a danger to our country," close quote. Even so, he concludes that there will still be detainees who cannot be prosecuted, but who, in effect, remain at war with the United States.

The president is clearly right, all the more so for detainees in Afghanistan. Just because we can prosecute some terrorists in federal court does not mean that we can prosecute all those who would attack our troops and citizens. And we do not want to blur the line between the legal protections afforded to U.S. citizens and lawful permanent residents on the one hand, and those suitable for foreigners abroad who the military has concluded would do us harm.

We should resist the return to pre-9/11 practice that exclusive reliance on criminal proceedings would reflect. We do not want to leave terrorists in the field or send them there simply because U.S. forces have not gathered evidence of past wrongdoing, admissible in court and provable beyond a reasonable doubt. We want them off the battlefield sooner and to stay off longer. As the president says, we need tools to allow us to prevent attacks.

Thank you.

SEN. FEINGOLD: Thank you, Mr. Klinger.

Our last witness this morning is Sarah Cleveland, the Louis Henkin professor of human and constitutional rights and the co- director of the Human Rights Institute at Columbia Law School. Rhodes Scholar and Yale Law School graduate, Professor Cleveland clerked for Judge Lewis Oberdorfer on the D.C. Circuit and for the great Supreme Court Justice Harry Blackmun. She is a renowned authority on international human rights and labor rights, the constitutional law of U.S.-foreign relations and the interaction between human rights and international trade. Professor Cleveland is also an experienced human rights litigator in the United States and international courts. And in 2003 she helped draft a labor code for post-Taliban Afghanistan.

We appreciate your presence today, Professor. Please proceed.

MS. CLEVELAND: Thank you, Chairman Feingold.

And thank you, Ranking Member Coburn for including me in the testimony on this pressing issue.

I'm a scholar of U.S. constitutional law and human rights law and also co-coordinator of the Working Group on Detention Without Trial, whose draft report on comparative detention practices I would like to submit for the record today, along with my written testimony and an excerpt of State Department country reports on preventive detention practices abroad.

SEN. FEINGOLD: (Off mike.)

MS. CLEVELAND: I would like to start out by responding to David Rivkin's assertion that these are not ordinary criminal suspects and that the United States possesses under the laws of war a roving authority to seize and detain indefinitely persons suspected of being members of al Qaeda or its affiliates around the world.

I agree with other witnesses today who have said that persons who are seized in Afghanistan on a conventional battlefield while taking up arms against the United States may be detained for the length of that conflict. This power was acknowledged by the Supreme Court in Hamdi. Appropriate rules urgently need to be put in place to regulate the grounds and procedures for such detention, but it falls well within long-accepted international standards.

I part company from Mr. Rivkin and Mr. Klinger, however, in the claim that wartime detention authority allows the United States to indefinitely detain al Qaeda or Taliban affiliates seized far from any battlefield, wherever they may be found. It is this claimed roving detention power that has brought the U.S. widespread international condemnation, eroded our moral authority and brought new converts to terrorism.

The subject of this hearing is "The Legal, Moral and National Security Consequences of 'Prolonged Detention'." And my remarks are organized around three premises: that prolonged detention of non- battlefield detainees is unlawful, that it is immoral and that it has dire national security consequences for our country.

First, prolonged detention is wrong as a matter of law because it offends our most fundamental constitutional values. Protection of personal liberty against arbitrary confinement is one of the hallmarks of our legal tradition.

Our Constitution narrowly circumscribes the conditions under which a person may be incarcerated through the criminal justice system. It does not recognize a roving power to detain dangerous persons. As federal Judge Jack Kunauer (ph) has observed, there is no "bad guy" amendment to the U.S. Constitution.

The government does have authority to detain people outside the criminal justice system under a very few narrow and historically confined exceptions, such as quarantine for public health purposes. One of those exceptions is the power to detain fighters of a foreign state in an international armed conflict. But as Tom Malinowski has testified, this exception exists for extremely specific purposes and is narrowed by well-defined parameters.

Those purposes and parameters are not present when suspected al Qaeda members are seized and detained far outside the battlefield. In those circumstances there are no objective indicia of combatancy. The obligation to detain, as a preference over killing a fighter, is not present. The choice is between detention or criminal prosecution.

None of the battlefield exigencies that make preservation of evidence or criminal prosecution difficult in a wartime conflict are present when someone is seized in a hotel in Thailand.

But even if the detention of such persons could be contemplated under international humanitarian law, they fall so far outside any traditional exception to our own criminal justice system as to be unconstitutional, as Justice O'Connor recognized in her plurality opinion in Hamdi.

Second, prolonged detention is immoral. Prolonged detention is -- without a proven crime offends the world's most basic sense of fairness. It is the hallmark of repressive regimes that the United States historically has condemned around the globe. Our adoption of prolonged detention on Guantanamo has undermined our moral authority in promoting improved human rights conditions abroad. And it has alienated the United States as a leader in counterterrorism efforts.

Our annual State Department Country Reports on Human Rights Practices devote extensive scrutiny to the short and long-term detention practices of other states. They demonstrate that none of our North American or European allies engage in the kind of detention practices that the U.S. has claimed in the recent past.

Third, prolonged detention harms our national security; it does so for four reasons. It recruits people to terrorism as Elisa Massimino has said. It discourages cooperation in counterterrorism. It diminishes our soft power to lead on national security issues. And by condoning similar abuses, we embolden other states to take actions contrary to global security interests around the world.

In closing, I would like to note that this subcommittee is one of the guardians of our Constitution. For the United States to ratify the principle that our government may hold people indefinitely, based on the claim that they cannot be tried but are too dangerous to be released, forgets our constitutional past, distorts our constitutional present and jeopardizes our constitutional future. It forgets our past in which some of our worst historical episodes have involved indefinite detention, such as the Japanese internment. It distorts our present, because to bring Guantanamo onshore and perpetuate it would do permanent damage to our constitutional traditions and make the cure far worse than the disease.

Finally, it jeopardizes our future. For, as Justice Robert Jackson warned in his dissent in Korematsu, if we accept the principle that we may detain those who cannot be tried but are too dangerous to be released, that principle will lie around like a loaded weapon ready to be picked up and used by any future government at home or around the globe.

Thank you. I look forward to your questions.

SEN. FEINGOLD: I thank you, Professor Cleveland, and all the witnesses, for your testimony.

I ask unanimous consent that the statement of the chairman of the full committee, Senator Leahy, be placed in the record, without objection.

And we'll begin with seven-minute rounds for the panel.

Ms. Massimino, I understand that the Human Rights First has conducted extensive research into the 120-plus terrorism cases prosecuted in federal court over the past 15 years. And your organization, I'm told, has concluded that bringing such cases has, quote, "contributed significantly to the gathering of intelligence of terrorist plots and networks."

Can you provide some specific details about how our criminal justice system actually provides these national security benefits? And how have, you know, criminal trials helped to unravel some future terrorist plots?

MS. MASSIMINO: Sure. Thank you.

Human Rights First -- when the Bush administration started to discuss the need for an alternative system, we wanted to examine the sufficiency of the current criminal justice system, the regular criminal justice system, for dealing with these cases. And so we asked two former federal prosecutors to look at all the terrorism cases over the last 15 years that have been brought in the federal courts. And this report, "In Pursuit of Justice," is the result of that effort.

We looked in great detail at the materials, the background materials, the filings in all of these cases. And what we found was that the United States has captured, both in the United States and overseas, some of the most dangerous terrorists the world has ever known and has prosecuted them successfully in U.S. courts and incarcerated them in U.S. jails.

And what we did in the report was to look at all of the claims that have been raised about the insufficiency, alleged insufficiency of the criminal justice system in dealing with these cases. And what we found is that the federal courts are adaptable and flexible in dealing with the many challenges that these cases pose. And they do pose challenges on -- as Mr. Laufman knows probably better than any of us here.

But what we found is that the law has evolved. And so prosecutors have been able to invoke a host of specially tailored anti-terrorism laws and generally applicable criminal statutes -- in fact, some that provide greater flexibility than the substantive laws that we were saddled with in the misguided military commissions that would enable us to obtain convictions; that there has been no serious problem with obtaining jurisdiction over those defendants, even when they've been apprehended by unconventional or forceful means; that, as David Laufman suggested, that the existing criminal statues in the immigration laws give us an adequate basis to detain and monitor suspects in the vast majority of these cases that we know; that the Classified Information Procedures Act, that CIPA has successfully balanced the need to protect national security information, including the sources and methods of intelligence; that Miranda warnings have not posed a barrier to prosecution in these cases, because they're not required on the battlefield or in non-custodial interrogations or interrogations that are conducted primarily for intelligence-gathering purposes; that the federal rules of evidence, including the rules of authenticated -- on authentication of evidence collected abroad give the courts a flexible framework for dealing with these issues; and that the sentencing guidelines and other sentencing laws give us severe sentencing options for many terrorist offenses.

And also we looked at the very real prospect of the danger posed by having terror suspects to the participants in these trials -- the judges, the juries, the court officers -- and found that the United States court system has been able to deal with those challenges successfully.

Just this morning, we saw that the Obama administration has moved a Guantanamo detainee, Ahmed Ghailani, to New York to stand trial for his role in the embassy bombings. And I think that and the al Marri case -- the moving of the al Marri case into the federal justice system -- has the potential to really demonstrate what the president talked about, in terms of faith in our institutions and the ability to change the perception that we have promulgated through our past actions of al Qaeda as combatant warriors against us into a more effective tool in the broader counterterrorism struggle pursuant to the theory in the counterinsurgency manual.

SEN. FEINGOLD: I thank you for your answer. Professor Cleveland, you make the very practical point in your testimony that there is no evidence that preventative detention works in the context of terrorism. You cite the fact that the U.K. renounced its prolonged detention of terrorism suspects in Northern Ireland in 1975 and a former British intelligence officer, Frank Steele, concluded, quote, "internment barely damaged the IRA's command structure and led to a flood of recruits, money and weapons." So it seems to me we have strong evidence that prolonged detention actually could make us less safe. Can you speak about any additional evidence for this conclusion?

MS. CLEVELAND: Yes, thank you. The Northern Ireland example is well known and has been carefully scrutinized. There are numerous studies that indicate that not only were the detentions ineffective in that they did not successfully incapacitate IRA terrorists, but instead, they inflamed hostility to the U.K. regime and inspired people to join the IRA. There are a number of studies of this phenomenon and this phenomenon was a reason that the U.K. finally abandoned the detention policy in the 1970s.

In India, studies of India's detention practices also indicate that long-term detention without trial contributes to a cycle of violence and abuse, which in turn flames unrest and provides recruitment tools for terrorist organizations.

With respect to Israel, Lisa Hajjar's book "Courting Conflict" on the West Bank military tribunals shows that Palestinians were mobilized to fight Israelis by the system of preventive detention and military tribunals, particularly by the "natural deaths," quote-end quote, of Palestinians in Israeli custody.

There have also been more recent studies of combatants in Iraq demonstrating that people who come from countries with abusive civil rights systems are much more likely to join the fight against the United States than others that respect the rule of law.

SEN. FEINGOLD: Thank you, Professor.

Senator Coburn.

SEN. COBURN: Well, thank you, each of you, for your testimony. I'd like for you all to just answer this in the briefest form possible. Are we, the United States, under any international obligation which would require us to try or release the detainees that we have?

MR. RIVKIN: If I may start, Senator Coburn, the short answer is no. The slightly longer answer is that with respect to my distinguished colleagues, all the caveats and all the qualifications that they spoke about, namely combatants fighting on behalf of states, combatants being picked up on the battlefield, roving commission to capture people anywhere, are not supported by existing body of international law. If you're fighting on behalf of an entity which is in a state of armed conflict with the United States, which is an objective test under international law as to what an armed conflict is, but if you fight on behalf of a private entity or state entity is irrelevant or you were captured on the battlefield or 500 miles away from it is irrelevant in terms of our ability to be able to detain such a person.

I don't have time to get into historical examples, but does anybody seriously believe that if we launched a commando raid as we did in World War II to capture some Wehrmacht officers 500 miles away behind the front line or perhaps in Switzerland that they would not be detainable under the laws of armed conflict?

The problem you have is that international law provides the widest latitude and all the caveats and all the restrictions that are being introduced by my colleagues drive towards one purpose only, which is to eviscerate and de-legitimize the international law architecture. And with respect, you cannot fight a war (without ?) using laws of war architecture.

And it's not only about detention. Let me just close by pointing out the absurdity of the proposition that you can use a predator to launch a missile to kill somebody in a jeep in Yemen because you believe a person may be an enemy combatant. You can use deadly force, which you cannot do with a criminal suspect. That's okay. But if you happen to have a commando unit grabbing this person, that person cannot be detained as a combatant under the laws of armed conflict. That distinction is absurd.

And what we're going down the path is not just not being able to detain people like that, not being able to use deadly force, not being able to fight a war against the people who are very much fighting a war against us. That way lies defeat and disaster.

SEN. COBURN: Mr. Malinowski?

MR. MALINOWSKI: Sure. This is not the Wehrmacht. (Laughs.) This is not a conventional army of a state that has declared war against the United States with which we're engaged on a conventional battlefield. This is an entity that kills civilians. That's its reason for existence. This is an entity that blows up buildings. This is an enemy that blows up children. This is an enemy that killed 3,000 people in New York City on September 11th and has done similar things all around the world. This is the kind of entity that throughout history has been treated as the lowest form of criminal life, whose members have not been accorded the honor of being treated as warriors but have been put away in the darkest prisons that we have for such people. That's what this entity is and that's how this entity should be treated.

And, yes, absolutely, if the members of this entity are holed away in a place where we cannot send the NYPD to put handcuffs on them because they're protected by a lot of weaponry and it's a lawless area like Yemen or Somalia, then of course we can use deadly force. You can use deadly force in a lot of situations when you're trying to bring people in. It doesn't therefore lead to the conclusion that because you can use deadly force in those situations you have to then treat them as soldiers and detain them without charge. You still do what's in the national interest in that situation and what's in the national interest is not to treat these people as warriors. It's not just a matter of law, it's a matter of what's best for this country.

SEN. COBURN: Others?

MS. MASSIMINO: Well, if I could just add briefly, you know, the fact is that al Qaeda declared war on us several times before 9/11, and again, there is a -- as we've discussed this morning, they see it very much in their interest to promote that framework onto our response to them. And I think it's quite important for us to take notice of that.

And with respect to my colleague Mr. Rivkin, you know, there -- we seem to be under the misimpression that the only way to take the threat of al Qaeda seriously is to shoehorn all of our response into a military framework. And while absolutely it's clear -- I would be the first to say that the criminal justice system is not the solution to the terrorist problem, nor, I think, is it smart for us to ignore the advice in the counterinsurgency manual that General Petraeus put together or the advice of federal prosecutors who have successfully put away dangerous criminals through that system. I think it would be a mistake to treat those people as the warriors that Mr. Rivkin would have us think they are.

SEN. COBURN: I noted that, Mr. Laufman, in your testimony about Article 3 courts you had a caveat that not all of these could be tried in an Article 3 court. Would you expand on that?

MR. LAUFMAN: Senator, I think there's a menu of variables that complicate the ability to try some of these cases in Article 3 courts both for policy reasons and pragmatic reasons.

From a policy standpoint it's not clear to me that an individual who has committed crimes against humanity or crimes of that kind of atrocity belongs in a criminal court as opposed to some other forum with international and domestic legal standing. If individuals have been subjected to coercive interrogation it severely complicates if not cripples the ability of prosecutors to build a case in the absence of external corroborating evidence.

There's just a host of potential issues that complicate the ability to bring all of these cases before Article 3 courts.

SEN. COBURN: Thank you. Thank you.

Mr. Klingler, how would the legal and constitutional rights of detainees currently held at Guantanamo Bay change if they were brought to the United States?

MR. KLINGLER: Under the Hamdan decision there are a broad range of constitutional rights extended to detainees in Guantanamo to the extent that they're necessarily implicated by the right to have habeas review. There's some sort of due process right that under Boumediene did not get defined. Chief Justice Roberts criticized the court for providing a right under Boumediene without defining the scope of that.

If the detainees got brought to the United States they would have a stronger set of arguments that they are entitled to the full range of rights that were -- that are accorded to federal defendants.

If they are criminally prosecuted, they clearly have the absolutely full range of rights that would be given to U.S. citizens, lawful permanent residents or anyone else who's brought before the criminal justice system. Everything that's in our Constitution that would apply if you or I were prosecuted would apply to a detainee in a criminal prosecution.

So that's where the difference between the two sets of rights comes. On the one hand, if they are left in Guantanamo right now they have some set of rights -- undefined, but quite limited, but clearly with some due process rights associated with their habeas proceedings, in the United States under a criminal prosecution the full range of rights.

MS. CLEVELAND: Senator Coburn, would you mind if I -- (off mike) -- upon the --

SEN. FEINGOLD: Professor, you can briefly respond then we'll start another round.

MS. CLEVELAND: Thank you. I just wanted to note that the Supreme Court twice now has held that Guantanamo is essentially United States soil for the purposes of the application of U.S. statutory law and U.S. constitutional law. They did so in the Rasul case in 2004 and again in the Boumediene case last summer.

And in Boumediene they were quite forceful in noting that because of the complete jurisdiction and control that the United States exercises over Guantanamo there is very little justification under the type of functional approach to application of the Constitution that the court employed to concluding that constitutional protections would be significantly different on Guantanamo than in the United States.

So I would suggest that whether or not the detainees are held in Guantanamo or in the United States they are entitled to quite robust constitutional protections under the Supreme Court's decisions.

MR. KLINGLER: May I --

SEN. FEINGOLD: Go ahead, Mr. Rivkin.

MR. RIVKIN: With respect, that may be where the Supreme Court or a portion of the Supreme Court would go, that is not the holding of Boumediene. Therefore, in one instance you have uncertainty in litigating it; in another instance, if you bring people here you have absolute and utter certainty that they have a full panoply of constitutional rights.

But there's on other important issue. What happens to individuals like the Uighurs who are being ordered released by the court despite Judge Urbina's opinion? If you look at what this administration is continuing to do in this area they're arguing quite vigorously, but the federal courts, despite the existence of constitutional habeas, lack the power to compel the political branches, the executive in this instance, to bring an alien from outside the United States to be released.

If you bring people here, there's no doubt in my mind that anybody whose habeas -- who prevails in his habeas case would be released, possibly held for a few months, under the teaching of Zadvydas in immigration detention. Basically if we start bringing people here, we better be prepared, despite everything that is said at the political level, that dozens and dozens of individuals -- if you look at the odds so far in the habeas process in the district court for the District of Columbia, the government has not done very well, in my view, not because they're innocent but because the evidence is not there.

So we're going to have hundreds of terrorists walking around in this country who we cannot deport, by the way, back to their home countries because of concerns about torture. Aggregating the world's worst terrorists on American soil for years to come is not a very smart way to wage a war.

SEN. FEINGOLD: Let me start another round relating to this issue.

Mr. Malinowski, you noted that the Bush administration sent hundreds of former Guantanamo detainees back to their home countries and the Pentagon believes that some of these men have engaged in terrorist activities. What do we know about these people? Do you believe that some of them would have been safely locked up in federal prison if the United States had brought them to trial?

MR. MALINOWSKI: We actually know very little about most of them and so I would start by suggesting that we all need to be cautious about the numbers that have been put out, you know, one in seven have gone back to the fight, one in 10; the numbers keep changing. The evidence behind those numbers is lacking, to say the least.

You know, there've been guys put on that list because they gave an interview or wrote a book criticizing their treatment in Guantanamo and that was deemed being part of the propaganda war against us. There was a guy put on the list who went back to Russia and was picked up by the Russian authorities for allegedly committing a violent act, and the only evidence against him in trial was a confession that was tortured out of him by the Russian interior police. And we believe that's probably not something that we should be putting out as information with the U.S. seal of approval.

That said, there are some number of people we all have to acknowledge who have gone back of the 500 and some that were released who did commit violent acts, and that's something everyone has every right to be concerned about. I would say two things about that group of people.

First, if they had engaged in terrorist acts or supported terrorism before they reached Guantanamo, then the best option that the Bush administration had was to prosecute them for those crimes, as it did with Moussaoui, as it did with Padilla, as it did with Richard Reid, as we have done with a lot of people who've done nothing more than spend time in a training camp or give money to the enemy -- not particularly dramatic acts and yet they've been prosecuted. And had that been done, these people would be in a supermax somewhere today and not creating a problem for us somewhere in Saudi Arabia or Yemen.

Second, if these people did not engage in acts of terrorism or violence before coming to Guantanamo, then it is not correct to say that they returned to the fight. It would be more correct to say that we recruited them to the fight, which brings out once again the fundamental damage that this system has caused us and our national security.

I think we need to remember, Mr. Chairman, that even as we sit here and focus on these 241 detainees in Guantanamo, what to do about them, there is a much larger problem out there. It's much larger than the number 241. It is the thousands upon thousands of young men who are virtually identical in their profiles to these men who are at large in the world who pass through these camps in Afghanistan, who read the websites, who harbor the same views, who are potential recruits to this cause.

But we win this fight by diminishing that pool, and what Guantanamo and this system have done is to increase that pool of potential terrorists, and that's why, even as we struggle with the few dozen that we have to find some solution for, we've got to keep our eyes on that larger challenge.

SEN. FEINGOLD: I appreciate that point very much.

Professor Cleveland, yesterday ABC released a lengthy interview with Lakhdar Boumediene, who spent seven and a half years enduring harsh treatment at Guantanamo until he was finally released by an order of a Bush-appointed federal judge for lack of any credible evidence to justify his detention.

What lessons do we draw from Mr. Boumediene's experience and do we know how many innocent non-dangerous false positives, if you will, have been imprisoned in Guantanamo?

MS. CLEVELAND: I think that Mr. Boumediene's experience underscores precisely the infirmity with the idea that we can seize people far away from the battlefield, designate them as enemy combatants and purport to lawfully detain them under the laws of war.

Mr. Boumediene was working for the Red Crescent in Bosnia when he was arrested in October of 2001 and charged with conspiring to blow up the U.S. and British embassies. The Bosnian officials and a Bosnian court found that the allegations were not supported and he was ordered released, but then the U.S. government insisted that he be transferred to U.S. custody and he was ultimately taken to Guantanamo and put into detention and coercive interrogation to try to extract from him information about his knowledge of al Qaeda, which he did not possess. So he, as you said, remained there for seven and a half years. The Combatant Status Review Tribunal process did not release him. He was only released after the Supreme Court ruled in the decision bearing his name that habeas jurisdiction applied to Guantanamo.

So I think the lessons to be drawn are three -- that this underscores the high risk of false positives for seizures outside the battlefield; second, that prolonged detention often goes hand in hand with torture and abusive treatment -- this is the experience in other countries around the world that employ preventative detention and it was the experience in this case; and then third, that robust legal process protects our government. It just doesn't -- it doesn't just protect people like Boumediene. If he had been arrested with the expectation that he would be criminally prosecuted initially, evidence would have been maintained, he would have been put into a regular legal process, a court much earlier would have come to the conclusion that the wrong person was being held, and the government would have been saved the embarrassment in this case.

SEN. FEINGOLD: Mr. Laufman, you highlighted the public benefit of federal criminal proceedings in educating the American people and the world about the nature of the terrorist threats that we all face. I'd like to hear a little bit more about that. Would you provide some further details of this public benefit from your own experience?

MR. LAUFMAN: Well, probably the most signal experience I had was in the Abu Ali case, which has some resonance with respect to concerns today about whether the United States, like Britain, will become a target of homegrown radicalism.

Abu Ali was a resident of Falls Church, Virginia -- not far from where we're sitting here today -- born in Houston, Texas -- a very bright young man, went to Maryland as an engineering student but became enthralled by Islamic radicalism through trips to Saudi Arabia to pursue religious study and would up joining an al Qaeda cell at the height of al Qaeda's prominence on the Arabian Peninsula and somehow transformed from this young man with an extremely promising future into someone committed to waging acts of violence against the highest levels of the United States government.

All that information came out through a criminal trial, but it was a criminal trial that resulted from a lot of pulling and hawing within the U.S. government about what to do. Abu Ali, it may not be well understood, almost became an enemy combatant and hung in the balance for some period of months before the Bush administration decided upon reviewing assessments by prosecutors who said a case could be mounted in criminal court. But it hung in the balance for a while.

And our ability to bring a criminal case -- and this ought to be brought out in this hearing as well -- depended to a large extent on the cooperation of the intelligence community. My biggest struggles as a prosecutor, Mr. Chairman, were not against al Qaeda, they were with the general counsel's office of the CIA. And they have a legitimate interest, as we all do, in protecting against the disclosure of classified information improperly, but there is sometimes an unduly reflexive response to guard against the sharing of information that could be used in a criminal case even if by any objective standard no harm would truly come to the U.S. national security interest.

SEN. FEINGOLD: Thank you, Mr. Laufman. I'll do a third round here, a final round.

Mr. Malinowski, as you know, any federal criminal proceeding could conceivably end with an acquittal. How would you respond to those who would say this would be an unacceptable outcome in a terrorist case, and of course, alluding to the comments of Mr. Rivkin, would an acquittal mean the release of an individual on American soil?

MR. MALINOWSKI: No. If it's -- I believe if it's an alien -- I'm not talking about an American citizen here -- but if it's an alien that we brought here an acquittal would not result in the release of that person on American soil because we have all kinds of other legal mechanisms to detain and deport such people if the government feels that they pose a continuing threat.

But here's a bigger concern: I mean, let's say we start with this proposition that we cannot afford an acquittal and so we create a system that provides near certainty that someone who we believe is dangerous can be detained on an ongoing basis. If we have that option, that vastly easier option, my fear is that the government will always be tempted to use that option first, even for terrorist suspects against whom there is a pretty good likelihood of conviction.

And so people who could be convicted, who could be put away for years and years and years, for life, then get put into this easier box, because in the short term it's more expedient. And then that box comes under challenge. It comes under legal challenge. Detainees get to argue that they should be released based on the illegitimacy of the system, not on the basis of their innocence. It comes under political challenge. It comes under international challenge. And it's not stable. And eventually we come under great pressure, legally and politically, to release these people.

So in the short term it's expedient. In the long term I think the danger of dangerous people being released is greater if we use a system that lacks stability and legitimacy.

SEN. FEINGOLD: Thank you.

Professor Cleveland, as you eloquently noted, the Bush administration's failed experiment in Guantanamo has made it all the more difficult for America to promote the rule of law abroad. Could you give some examples of how other countries have used the prolonged detention regime of Guantanamo as a justification for their own human rights abuses?

MS. CLEVELAND: In Egypt, for example, the prime minister pointed to U.S. post-9/11 security measures as a justification for renewing the emergency in Egypt.

Perhaps the most disturbing example was in 2002, in his speech to the nation, Muammar Qadhafi of Libya, bragged to the Libyan public that he was treating terrorism suspects just like America does.

In December of 2007, when U.S. officials tried to criticize Malaysia for its preventive detention of five Hindu rights activists, the response of the deputy prime minister was, well, you clean up Guantanamo, and until you clean up Guantanamo we don't want to talk to you about having to justify our detention practices.

So there's an extremely corrosive impact on the rule of law in other countries. And many of these are rule of law countries where the rule of law is extremely fragile.

We cannot afford to have the rule of law in countries like Egypt and Pakistan deteriorate, particularly not in response to the model that we have put out.

SEN. FEINGOLD: Thank you, Professor.

MR. MALINOWSKI: If I could maybe add one point to that. I mean, there are dozens of examples like that. But I think we also -- when we put forward these theoretical arguments we need to ask ourselves, would we be comfortable if other countries applied similar theoretical arguments to their own conflicts and wars on terror.

There are a lot of countries around the world that claim to be engaged in their own wars on terror. Russia, for example -- (laughs) -- which, you know, sees virtually anybody who stands up to its rule in the Caucasus -- in Chechnya and Ingushetia, et cetera -- to be a terrorist engaged in a war against the Russian state.

Would we comfortable if Russia started making the argument that, well, that's part of a global war? Anybody who supports the Chechen cause in any way around the world is a combatant in that cause and therefore can be detained or killed as a combatant wherever they may be found. Not exactly a theoretical notion, as the Helsinki Commission knows quite well, given what's been happening to Russian dissidents in places like London and other places around the world.

Would we be comfortable if the Chinese started going around the world rounding up Uighurs because they were suspected of being part of a war on terror that China is waging?

SEN. FEINGOLD: Thank you, Mr. Malinowski.

MR. MALINOWSKI: These are dangerous things.

SEN. FEINGOLD: I want Mr. Rivkin to have a quick chance to respond --

MR. RIVKIN: Mr. Chairman, I appreciate your indulgence. And I'll be brief. I just want to say two things.

First of all -- (inaudible) -- difference in causation and correlation. Just because a bunch of hypocritical politicians in Russia or China or Malaysia or Egypt claim to be inspired by our example does not make it so.

I think even a casual reader of newspapers would acknowledge that there was plenty of torture and horrible misbehavior by Egyptian authorities long before Guantanamo, by Libyan authorities, by Russian authorities and the Chinese authorities.

I mean, the notion that we caused those things just does not hold true. And just because an Egyptian official claims to be inspired by it, it does not make it so.

SEN. FEINGOLD: Ms. Massimino, I'll let you do a very brief response.

MS. MASSIMINO: Very brief. I do --

SEN. FEINGOLD: But I do want Senator Cardin to have his chance.

MS. MASSIMINO: Absolutely. And I just want to distinguish -- I think that the view that was just put forward by Mr. Rivkin devalues what I believe is the incredible force of the United States as an example for good in the world and the ability of the United States to challenge those policies in the other -- it's not that we're saying that the Russians or the Chinese are doing this because of the U.S. example but, rather, that it -- our doing those things deprives us of the moral authority and standing to stand up for those people who are suffering in those countries. And the world very much needs that.

SEN. FEINGOLD: Thank you.

Senator Cardin.

SEN. BENJAMIN CARDIN (D-MD): Well, thank you, Mr. Chairman. First, I want to thank you very much for holding this hearing.

I apologize for not being here to listen to your testimonies. I can assure you that I will read them. This is an area of great interest.

And as has been pointed out, the Helsinki Commission that I chair -- Senator Feingold's a commissioner -- it's probably the number one issue we hear about as we travel around Europe or around the Asia. We hear more about the detainee issue than any other single issue for America.

And there's no one who challenges us -- a country that's under attack by terrorists -- for detaining suspected terrorists. They expect us to detain and try to get information to protect our nation. But the fatal mistake that the United States made in this effort -- and it caused significant damage to America, from the point of view, I think, of our national security as well as our international reputation -- was the fact that we said we could do this alone. We didn't need the understanding or support of the international community in the way that we were going to detain individuals, question them and hold them accountable.

And the danger here is what I think some of you have already alluded to: how do you distinguish that from another country which is at threat, as they see it -- an autocratic society that see the free press as a threat to their way of life? So therefore, isn't it fair game to detain individuals that are proposing a free press or free expression or -- and not have to deal with the international community, because the United States didn't have to deal with the international community and took steps in order to protect its society.

So I think that's where we put our nation at sever risk by what we did. And obviously, the motivation is not being questioned here. We were under severe threat, so we -- this country developed policies on its own, did not encourage the international community's participation. And worse than that, we were very secretive about it. There was no transparency. There was no effort to include the international community.

And then we went one step further by the use of torture, which is unacceptable under any scenario, counterproductive to U.S. values and to the pragmatic way of trying to get information. So for all those reasons we are now in a place that we have to repair the damage that's been done.

And I think this hearing is particularly important because we talk about those category of detainees that are very dangerous. They're very dangerous. And no one wants them released into a community where they can go back and do their damage. But we do have a rule of law that we have to figure out how we're going to deal with this.

And there's no easy answers here, but we certainly are going to have a better chance to get it right if we have open hearings and discussion and debate on this subject. So that's why I wanted to particularly thank Senator Feingold for convening this hearing so that we can have a discussion about these issues and try to figure out what is the best way to carry out U.S. interests.

But I must tell you, what I will be recommending is that we involve the international community in making these decisions, that it shouldn't just be a U.S. policy. The threat of terrorism is global. There is a need for the United States to lead internationally, to develop the appropriate way that individuals should be treated who are suspected terrorists. And it involves getting information to keep us safe. It involves holding terrorists accountable for their criminal actions. But it also involves respecting the rule of law.

And it's not the U.S. rule of law, it's the international accepted standards that the United States has helped develop over the years. And I think we'll get back to that.

And I don't really have any specific question, Mr. Chairman, because some of these questions have already been asked. And I really will read the record very carefully.

But I just thank our panel for being engaged in this discussion. Sometimes they -- it's a little painful, but it's something that we need to do. And a great democracy is prepared to take on these types of challenges.

Thank you.

SEN. FEINGOLD: Senator Cardin, I appreciate your comments very much and your presence, of course.

I want to once again thank all of our witnesses for being here today and for their testimony. This is obviously a very important issue. And I believe that the insights you've shared today will be very useful to this Senate as it considers any legislative proposal that comes before it.

They'll also be helpful to the administration as it weighs the costs and benefits of creating a new regime of prolonged detention. Our discussion today poses very difficult questions for an administration that of course seeks to be devoted to restoring the rule of law and trust in our values and institutions.

I plan to closely monitor the issue.

The record of this hearing will remain open for one week to allow our witnesses and any interested individual or group to submit supplemental materials.

In addition, members of the subcommittee have one week to submit written follow-up questions for the witnesses. We will ask the witnesses to answer any such questions promptly so we can complete the record.

And with that, the hearing's adjourned.


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