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Hearing of the Senate Armed Services Committee to Examine Legal Issues Regarding Individuals Detained by the Department of Defense as Enemy Combatants


Location: Washington, DC

The following is a transcript of Senator Clinton's questioning at today's Senate Armed Services Hearing:

Senator Clinton: Thank you very much Chairman Levin for holding this important hearing. And perhaps the exchange about the testimony might send a message to the Administration and the Justice Department, who I think, would be surprised to hear a defender of their policies, defend them for things that they frankly have not participated in. They have been quick to disregard precedent and rule of law. They have dismissed the Geneva Convention, so I think that it perhaps would behoove them to get some advice from Mr. Rivkin.

It seems to me that any effort to resolve the legal status of the detainees at Guantanamo must, at this stage, include a discussion of the logic of continuing to keep the facility open. Reports emerged in recent months that one of the first things Defense Secretary Gates did upon taking his post was to urge the Administration to close the detention facility at Guantanamo and to move the detainees to the United States. Earlier this month, Secretary Gates confirmed in testimony to the House Armed Services Committee that he had pressed for the closing of Guantanamo and that, in his view, proceedings at Guantanamo would lack credibility internationally.

Reports also suggest that Secretary Gates was joined by Secretary of State Rice in calling for Guantanamo to close earlier this year. They reportedly argued that the detention center should be moved to make the trials of detainees more credible, and because Guantanamo's continued existence hampered the broader war effort. It is my further understanding that this proposal was reportedly blocked by Attorney General Gonzales and Vice President Cheney for two reasons. First, because they were concerned it would make it harder for them to argue that the detainees have no rights, and second, that it would be a public admission that Guantanamo was a mistake. So here you have a facility that according to reports, the Secretaries of Defense and State argue is harming the war on terror.

State Department and Pentagon officials have elsewhere said, according to reports, that Guantanamo has harmed our relationship with our closest allies and made it more difficult to coordinate efforts in counterterrorism, intelligence and law enforcement.

I think we need to own up to the problem that is Guantanamo, and it goes beyond the very serious questions that have already been considered in this hearing about our treatment of detainees. William Taft IV, who was once the acting Secretary of Defense in the first Bush Administration, and then served as the current President Bush's chief legal advisor at the State Department during his first term, recently testified that it is evident that some detainees have been abused at the facility and that interrogation methods that have been used there have not complied with our international obligations under the Geneva Conventions. He also recommended closing the facility. Guantanamo has become associated, in the eyes of the world, with a discredited administration policy of abuse, secrecy, and contempt for the rule of law.

Rather than keeping us more secure, keeping Guantanamo open is harming our national interests. It compromises our long term military and strategic interests, and it impairs our standing overseas. I have certainly concluded that we should address any security issues on what to do with the remaining detainees, and then close it once and for all.

In his House testimony last month, Secretary Gates called on Congress and the Administration to work together on a plan to close Guantanamo. So my first question is--let me ask each of you, to the extent you feel you can comment, briefly-- what do you regard as first, the security hurdles to closing Guantanamo? And secondly, the legal hurdles? Do you want to start Mr. Dell'Orto?

Mr. Dell'Orto: Senator, from a security standpoint when, in the early days, the Department wrestled with a location for what we anticipated might be thousands of detainees-- I'm talking about in the late fall of 2001 after we had begun combat operations in Afghanistan-- we looked at various possibilities, and principally I mean in Afghanistan on the outset, because that's where the conflict was under way. The nature of that combat, the relatively small footprint that we ultimately decided as a matter of how we're going to fight the war on Afghan soil, led to the conclusion that Afghanistan was not going to work. We probably couldn't secure the facility, again if you anticipated getting those sorts of numbers.

As you looked around the world for other locations, there didn't appear to be a lot of other areas where, again, you could house large numbers of these sorts of detainees and not fear that there might be an attack on that installation by the terrorist organization itself. The United States was not a good option for these people because, again we anticipated large numbers; the level of violence that they have, in the past, undertaken; the fact that they didn't behave even upon capture as soldiers do--that is a disciplined unit that, once out of the combat or to combat, would sit docilely in a confinement facility, a POW facility-- and obey, understand under the law of war they were out of the combat, they are no longer fighting. You couldn't get that out of this group of folks. You had to find some place that was going to be truly secure and the U.S. was not going to be an option. Again, contemplating thousands.

So Guantanamo became a place that we believed we could literally secure from possible attack against the facility for the purpose of releasing them or creating havoc or what not. So, from the security standpoint, Guantanamo made sense. As it turns out, we have fewer then thousands but again, if you go to that facility and look around it, as perhaps you have, it is a very, very secure environment. And so that's why Guantanamo made sense from a security standpoint.

If we talk about now moving to the United States, I think then you bump up against the legal aspect, and that is, are we going to have the full plan of plea constitutional protections for those individuals by virtue of their presence on U.S. soil. If we are going to try these people by military commissions, as we have traditionally done for violations of law of armed conflict-- the eighteen hundred we did in post World War II Germany; the fifteen hundred or so we did in the Far East theater post World War II to deal with law of war violations-- then the military commissions traditionally, historically, and practically are the best way to deal with that. But, they don't necessarily match up when you try to overlay them with the full range of constitutional protections. And so, you do face that legal hurdle were you to bring them to the United States. You could very well wind up not being able to try them by military commission and then practically, rules of evidence and things like that would hamper your ability to get to truth in trying to hold them accountable in a legal system. So security wise, it was a determination made early on. Legally, I think we face that same problem today going forward and I don't know how to reconcile that at this point given the litigation we've been under, and would clearly wind up with even more litigation were we to bring them to the United States forthcoming.

Senator Clinton: Thank you. Admiral Hutson.

Admiral Hutson: With respect to my good friend Dan Dell'Orto, we've got, one, a red herring and two, a tired old argument. The red herring is the security. We don't have thousands, we've got 385. The United States prison system is easily capable of dealing with those. We have tried, tried to try, two people by military commissions from down there. One was a driver and the other was a kangaroo skinner. Some of them are terrible people, I'm sure. KSM admitted to everything under the sun, but we don't have 385 people that the United States prison system can't one way or another deal with. We've got John Walker Lindh in prison now for 20 years; we got Richard Reid in prison for life without parole. The U.S. prison system can deal with it.

With regard to the legality, we keep wanting to come up to the edge of Gitmo being a legal black hole and the reason they're there is because laws can't touch them and if you bring them back to the United States, the laws suddenly cover them. The United States Supreme Court has decided that issue. The law reaches down to Gitmo. It is not a legal black hole. So, it is not an insurmountable legal problem for the United States court system, which I testified earlier. We should be trumpeting from the roof tops rather than hiding behind the concertino wire of Gitmo. Let's bring them out, show them the light of day, prosecute them, convict those that need to be convicted and sentence them. Acquit those that need to be acquitted and get on with it.

Senator Clinton: But, we also are housing, in addition to the people you mention, Omar Abdel-Rahman, Ramzi Yousef, Wadih el-Hage. We've got other terrorists who've actually committed horrific crimes on American soil in super-max prisons. Mr. Smith.

Mr. Smith: I agree first of all, with the imperative of closing Guantanamo for all the reasons you've said and the reasons Secretary Gates has articulated. It's an impediment to trying to win the broader war on terror and our standing in the world. The security issues we can clearly deal with as Admiral Hutson said. The legal issues, I see no reason why we can't have military commission trials in the United States. I also see no reason why we cannot use the procedures we talked earlier, before your arrival, of beefing up the procedures for the combat statues tribunals. I don't see why we couldn't do that in this country as well. I'm in favor of ultimately restoring habeas corpus once someone has been through the process of a combatant status review tribunals. I don't see why any of that can't be done here. What do we have to fear from this kind of process?

Finally, as a political matter, at some point Castro is going to die and we're going to want better relations with the Cubans and my guess is one, first thing a new Cuban government is going to do is ask us to leave Guantanamo in its entirety and we may want a Naval base there. So, I think for all kinds of broader reasons, we need to be thinking very quickly about leaving Guantanamo. In my prepared statement, I suggested that the Congress direct the President to prepare a plan to close Guantanamo and to proceed along the lines of what the Admiral and I have been discussing, and I think that's a worthy thing for this committee to consider.

Senator Clinton: Professor.

Professor Katyal: Senator, I think you're asking exactly the right question, which is-- it's a bigger one then just simply closing Guantanamo--it's what is the legal advice that the Justice Department is giving the President of the United States. And here you've just heard Mr. Dell'Orto testify to this new military commission scheme as being legal and that we can't have these trials in America because, god forbid the constitution might apply. This is the kind of legal advice that says the Constitution is like a tax code and we should look for a loophole here and a loophole there, instead of treating it as our most foundational document. And as a student of history, I know it's hard for the Supreme Court in a time of armed conflict to rebuke the President. You know, you have to really try for the President to lose a case of armed conflict. It's like failing a class at Georgetown or something like that. And here the Administration has managed to do it several times because of this Justice Department advice. They said they won't have habeas corpus rights. Well, the Supreme Court said no in the Rasul case. The Administration said that U.S. citizens can be held indefinitely incommunicado. The Supreme Court said no in Hamdi. The Administration said, you can have military commission and try these people. The Supreme Court said no in Hamdan. So the Administration said, Geneva Convention protections can't be given even the most bare bones ones of common article three that that treaty doesn't require it. Supreme Court said no. They repeatedly lose. And I haven't even gotten to stuff like the National Security Agency and torture. This is an Administration and a Justice Department that's just telling the Administration what it wants to hear, instead of actually taking our legal obligations seriously. So, when you hear Mr. Dell'Orto say the Military Commission Act is going to be upheld by the courts, I think you should take it with a grain of salt.

Senator Clinton: Mr. Denbeaux.

Mr. Denbeaux: Senator, I was sitting here thinking about your question and I always go when I have a troubled problem to Occam's Razor, which is the simplest explanation is the best explanation. And the solution to this problem is to try them, to determine who belongs, who gets appropriately prosecuted, treated as enemy combatant and let the rest go. And I'm always troubled by when we have a simple solution to a really hard problem, the response is often to make a complicated, difficult, series of choices. And I don't understand for 385 or 400 people why we don't end this sore, lance the boil, have these people have a trial, and then whatever happens, happens.

None of the people in the habeas process want anything more than a trial. And if we get a trail, we wouldn't be here. In fact, if there had been article five proceedings on the battle field five years ago, I don't think anybody in this room would be there. The Administration keeps trying to avoid anything but a determination as to whether they're right or wrong. And they especially don't want it done by anybody but the Executive Branch; whether you call it CSRT or something else. And I think all anybody has a right to, whether it's an enemy combatant, American citizens, Senators, or anyone else is the fact that we try people, use our legal system. And the idea that somehow that we can't handle 385 habeas corpus petitions or-- any district in the United States handles that many in a week without even blinking an eye. This is not a big problem. It's simply one we don't want to address.

Senator Clinton: Mr. Rivkin.

Mr. Rivkin: Senator Clinton, in addition to the legal and practical problems that Mr. Dell'Orto mentioned, I think some of our subsequent observations on this underscore what I think is a fundamental problem. Guantanamo is not just a piece of geography. I personally would have no problems closing Guantanamo and going somewhere else. But this is a symbol of a fundamental intellectual tension and frankly confusion on the part of many people, because to say for example-- and I had lots of discussions with Europeans both government and academia and I asked them-- if we moved everybody to Leavenworth and we deployed the same system of sea search and military commissions and the same style of judicial review, would you be happy? And the answer is no. They're not interested in that. Unfortunately, most of our allies are not taking the traditional laws of our paradigm seriously at all. They wouldn't be satisfied with anything other than in essence, a criminal justice paradigm, which, in my view, is utterly impractical to most people. It's very difficult to convince somebody in the criminal system. [Inaudible] evidence to collect overseas. You know, famous DNA contamination chain of custody maybe of somebody of an AK-47, follow that person's defense [inaudible] and I'm not even a criminal law expert, I would make mincemeat out of a government's argument. How do you know it's an AK-47? How many hands did it got through?

But there are far more fundamental problems. We really are present on a clash of fundamental philosophies. Is this a real war? Does the law here apply? Or there's a criminal justice system in which case, with all due respect to my counterperson Denbeaux, you don't need to try people who you capture as enemy combatants. You have the full right to hold them for duration of hostilities, not as a punishment, to make sure it don't go back to combat.

And I don't understand one thing. Why is it more charitable to try somebody, as Walker Lindh, and put him in prison, if I am not mistaken, for 25 years? I don't think he'd be pardoned by any President. And then you have people who have done at least that much or worse who get released to go to Britain who are sitting drinking beer in a pub right now. To me, if you go down the criminal justice paradigm, it is both under-inclusive and over-inclusive. It would let people go who shouldn't go and it may be harsh for some people. The mothering justice system actually is far more effective at weeding out people who need to be detained for awhile. And again, would it be really charitable if we tried every single one of those people? And let's pretend for a second that there really are enemy combatants and what are we going to put everybody in prison for 25 of 30 years? Is that going to make anybody happy?

Senator Clinton: Well, obviously Mr. Chairman, this is one of these issues on which there are strong feelings. I personally believe that in the eyes of the world, Guantanamo is ammunition for our enemies and it is time to close Guantanamo and to deal with both the security and the legal challenges. There is a lot of land in this country that the federal government owns. There is certainly no shortage of capacity to build a special detention center or prison or to use one of the maximum security facilities that already exist, but I think it would be worth while following up with the comments that Mr. Smith made, about perhaps putting forth some positions from the Congress, so at least this debate would be engaged in a vigorous way, which it deserves to be.

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