Hearing of the House Foreign Affairs Committee - City on the Hill or Prison on the Bay? The Mistakes of Guantanamo and the Decline of America's Image, Part II

Statement

REP. DELAHUNT: The hearing will come to order.

Let me explain somewhat the delay. We are receiving testimony via video link from Germany. So it's my understanding that the microphone is off at the particular venue in Germany. But myself and Ranking Member Rohrabacher will proceed with our opening statements. And hopefully by the time that we have concluded, we will be able to take testimony via the videoconference.

Today we continue our examination of the operation of the detention facility at Guantanamo, and how that operation influences the perception of the United States by the international community and the resulting consequences for American national security and foreign policy objectives.

Years after Secretary Rumsfeld described the GTMO detainees as the "worst of the worst," I think it's fair to say, as one of our prior witnesses stated at an earlier hearing, that many are more accurately described as "the unluckiest of the unlucky."

It's important to understand that a majority of the detainees that are currently or were incarcerated at Guantanamo were the victims of a bounty system that made them easy prey for local thugs who seized an opportunity to make a fast dollar.

It's also important to note that only 5 percent of the inmates were captured by American forces. The rest were primarily purchased from Afghanis and Pakistanis. Now, the fact that mistakes are made in the fog of war is understandable. And as in any human endeavor, mistakes are to be expected.

But what is a trait embedded in American history is that once discovered, we acknowledge our mistakes and we fix them. And if needs be, we design a system that allows redress that embraces the rule of law in full measure and demonstrates to the world that American justice is not afraid of the truth, but rather seeks the truth, however embarrassing that may be.

However, no admission that mistakes were made is forthcoming from this White House, that this is not the rule, rather this is the rule -- it's not the exception. They appear to be in a constant state of denial.

In response to the Supreme Court's decision in Hamdi, they compounded their mistakes by setting up a review process at Guantanamo that makes a mockery of the unique American respect for the rule of law and due process.

As we shall hear today, that process known as the Combatant Status Review Tribunals or CSRTs, were not established to search for the truth about the guilt or innocence of detainees. Instead, their sole purpose was to legitimize the administration's detention of these people. If a CSRT issued a determination that someone was not an enemy combatant, they could merely convene a new panel, a new CSRT to overrule the decision of the first.

And as we shall hear today from Lieutenant Colonel Abraham, the results were often fixed. They were a sham. Exculpatory evidence was ignored in the case of many detainees, including German resident Murat Kurnaz, from whom we will hear shortly.

But that wasn't all that was ignored. America's adherence to the rule of law was ignored, and American values were also ignored. The treatment of these detainees both in GTMO and elsewhere has been appalling.

As we will hear today, this includes sticking someone's head in a bucket of water while punching them in the stomach and demanding they confess. This includes hanging them by their wrists. This includes placing them in metal boxes with no natural light for 22 hours a day with nothing to read or to do, even 14-year-olds. This is conduct that every American finds repugnant.

It's important to remember that this conduct is corroborated by reports -- and I understand one is being issued today or tomorrow -- that the FBI, our own Federal Bureau of Investigation, raised concerns about U.S. interrogators mistreating detainees in Guantanamo, and as a result, withdrew from participating in the questioning of those individuals.

What sets America apart among the family of nations is our adherence to principles, principles of justice, principles of respect for all human beings. These are the principles that have defined us as a nation. They are not to be ignored when inconvenient. They are not to be ignored even when dealing with bad people, rather in the treatment of our enemy we shall be judged ourselves.

And if we adhered to these American principles and we provided these detainees with a fair assessment of their status as we've always done, we would have found that many of these detainees were neither enemies nor even combatants.

Based on the statistics from the Department of Defense as analyzed by Professor Denbeaux, only 4 percent of the 516 CSRTs even alleged that a detainee had been on a battlefield. As we heard in previous hearings, decisions on release often had more to do with whether a country was advocating or pushing to get its citizens back or not, and whether they were considered allies.

That is why some get sent back even when they are dangerous. And many who are not dangerous are not released; Alice in wonderland, if you will. And when we do send them back, some have been sent back on the basis of so-called diplomatic assurances. In other words, promises from the receiving country that the detainee would not be tortured.

This is a purported way to meet our obligations under the convention against torture which we had ratified and are signatory to. But we sent back detainees -- the countries such as Libya, Tunisia, Kazakhstan, and Iran. These are all nations which our State Department describes as practitioners of systematic torture.

But we have to give the government credit for one thing -- recognizing that diplomatic assurances from the Chinese who wanted the Uighurs back wouldn't pass the last -- (off mike). And now we find ourselves in a quandary. What are we to do with the Uighurs?

We can't seem to find a country that will accept them. Albania has accepted, I understand, some five. Are they to be held indefinitely in solitary in Guantanamo? Of course not. We cannot tolerate that as Americans. Let's be clear what's at stake here. The damage goes far beyond just the families and the inmates at Guantanamo.

This place which single-handedly dealt a blow to the nation's image in the world that will take decades to overcome. Consequences to our national interest are devastated. The State Department's own advisory group on public diplomacy to the Arab and Muslim world concluded that hostility towards the U.S. makes achieving our public policy goals far more difficult.

And the injury is just not limited to the Middle East or the Islamic world. As a 2005 GAO report concluded, a poor reputation seriously undermines our ability to pursue our foreign policy objectives across the globe in an array of spheres whether it's establishing a security alliance or selling American goods.

In our efforts to claim a moral authority, Guantanamo is a serious obstacle. Sixty-eight percent of the people polled across the globe disapprove of how the U.S. government has treated detainees in Guantanamo. In several countries including Germany, Great Britain, Argentina, and Brazil, disapproval rates on our handling of the detainees at Guantanamo surpassed 75 percent. It's well past time for us to deal with our mistakes.

We all must work aggressively to free everyone who we agree after thorough review can depart. If no nation can be found to which these detainees could be safely sent without risk of torture, then we need to think creatively about alternative solutions, including bringing some to the United States, particularly for the Uighurs. Resettlement in the U.S. is the obvious choice. For those the administration still consider a threat, let's just give them their day in court.

And now let me turn to my friend and colleague, the ranking member, Mr. Rohrabacher of California.

BREAK IN TRANSCRIPT

REP. DELAHUNT: -- and those names are obviously entered. I would like to make the point that I have no doubt and I would stipulate as to that number. I would also suggest that maybe we can ask the second panel how many of our colleagues have ever interviewed a detainee while on a visit at Guantanamo.

Let me suggest that you and I engage in a little friendly wager, and I would submit none has ever had an opportunity to go directly one-on-one with a detainee.

And I know there are attorneys and counsel that are present here, and I am confident that when enquired of, they would be willing to sign a waiver so that you and I could go down there and actually go and interview their clients and hear firsthand rather than through some filter what their impressions are, how they see the facts.

I think it's very important that we get to the facts as opposed to being told what the facts are by others who have an interest in giving us this spin. I would also take -- raise a question -- and again, I have great affection for my ranking member as he knows.

But he mentions Khalid Sheikh Mohammed and as a result of enhanced interrogation techniques, certain results were produced. I challenge that. I don't know if I believe that. It's never been demonstrated. It's only been hinted at. Let's find the truth as to that too. Let's not just make assumptions for the sake of an argument.

In fact, I read a report once that said he gave information that was totally inaccurate that led us -- that led our forces on wild goose chase after wild goose chase. It's important to get the facts, I agree with you.

And I also want to point out to you that one of our witnesses today, Professor Denbeaux, can speak to the issue of those that have returned to the battlefield. He's done an analysis; we welcome his testimony. Let's look at it.

As I said to you at our last hearing, I think it's incumbent upon particularly you and me, since we are the senior members of the foreign affairs subcommittee on oversight to visit Guantanamo and talk directly to all of those that are involved, and find out what the facts are.

I would welcome the Department of Defense to come in and to be transparent and lay the facts out for our review and for the review of the American people. That's what we are about. We want to find the facts out. I don't want to reach conclusions without hearing the facts.

However, I am disturbed by the facts that I have heard as of this date. And you are right, we don't want to see people with animus towards and hostility towards the United States that would do us harm. So we need a process, a process that clears the innocent and convicts the guilty.

This isn't just simply letting people go. That's not what I'm looking for, and I know that's not what you are looking for. We are looking for the truth. We need a process that the American people and the rest of the global community can have confidence in, that we are acting according to our better angels, if you will, as we have had historically in terms of America's -- American jurisprudence. So we need to make sure this process is a valid one and is one that produces the truth.

You -- I know that you read the testimony of Colonel Abraham. And his testimony, his written testimony was powerful. A man who has a heritage that knows of lives and knows of the violation of human rights on a scale like we have never seen before. And what he relates in his testimony is disturbing.

And we have statement after statement coming now from people in the military, people who know the system that who say, for example, strategic political value of putting prominent detainees on trial before the 2008 presidential election, that was Colonel Davis who made that comment, the man in charge of this process. What are we to believe?

Well, we have a witness before us today, who'll give us his view. Let me introduce him and let me introduce his American attorney, Mr. Azmy. I'm not going to go into your curricula vitae, it's considerable. He certainly is good counsel and has done a remarkable job with his clients.

And I also want to acknowledge that we've been joined by a member of the Appropriations Committee, Congressman Jim Moran of Virginia, who has had an abiding interest in this issue. And I want to welcome him to the dais.

Murat Kurnaz is a 26-year-old Turkish citizen, who was born and raised in Bremen, Germany. For five years, he was detained at Guantanamo Bay, Cuba. This happened despite the fact the publicly released documents indicated that both German and U.S. authorities determined early on that he had no affiliation with al Qaeda or any other terrorist group.

He authored a book about his experience, "Five Years of My Life." He is joined by his German counsel, Bernhard Docke here in Washington. We are joined by his, as I said his American counsel Professor Baher Azmy. Welcome, to all of you.

Mr. Kurnaz, please proceed with your statement.

If you can tell --- can you hear me? We're having an audio problem. If we could just suspend for a moment and let's see if we can make this work. We need a good technician.

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REP. DELAHUNT: I would note for the record, however, that our witness is testifying from Bremen, which is in Germany. And at the same time I acknowledge that there is culpability to be shared.

And if you remember the hearing that we had with members of the European parliament they issued a report that I would suggest was very critical of many of the governments in Europe regarding the rendition issue that that hearing was the focus of.

And I want you to know that recently I had an opportunity to discuss these issues with particularity in terms of the Uighurs about our European allies and friends to participate in a very robust way in resolving the predicaments and the quandary that the Uighurs are now experiencing in Guantanamo, because it's absolutely unconscionable that these individuals who have been cleared for release are being kept in isolation in an American prison wherever it may be.

And I know that you and I together can work on that particular issue and hopefully working together with our allies resolve this issue as expeditiously as possible.

I thank the gentleman for yielding.

BREAK IN TRANSCRIPT

REP. DELAHUNT: It's my understanding, and either Mr. Kurnaz or Mr. Azmy can respond if I'm representing accurately the role that your friend played.

One of the reasons that was given by the -- at the CSRT for you being designated an enemy combatant was that you were involved with Mr. Bilgin, your friend, in a suicide bombing that occurred in November of 2003.

Clearly you were incarcerated in Guantanamo several years before November of 2003 and Mr. Bilgin, as you indicated, is alive and never obviously committed an act of terrorism against anyone by blowing himself up. Is that a fair and accurate statement, Mr. Azmy?

MR. AZMY: Yes, Mr. Chairman, that's an accurate statement. The allegation is that he -- that Murat simply has an association with someone --

REP. DELAHUNT: A suicide bomber.

MR. AZMY: -- who might have later blown himself up. So your friends --

REP. DELAHUNT: Who is not a suicide bomber?

MR. AZMY: That's right, and of course it was factually preposterous, as any five minute call to any German official would have revealed, because he was alive and well at the time and under no such suspicion of any such terrorist act.

REP. DELAHUNT: So this is the basis for defining or labeling Mr. Kurnaz as an enemy combatant. This was -- and I'm going to let Mr. Nadler explore the second business, but that is I think reflective of the process that was put in place by this administration, when these individuals who were detained at Guantanamo were brought to that facility and held, and I would suggest that that particular episode reflect a total lack of due process, a process that is dignified by calling it a process.

It just simply didn't exist. And we wonder why we are criticized internationally and by many in this country. With that let me yield --

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REP. DELAHUNT: I'm going to just ask a few questions to Mr. Azmy. And it's my understanding that the Detainee Treatment Act process requires the court's hearing a detainee's position to accept all of the factual findings of the CSRT panel. Is that correct?

MR. AZMY: That's right. You must --

REP. DELAHUNT: That's true.

MR. AZMY: You assume that the factual findings of the CSRT are correct, and under the procedure created by the MCA and the DTA, you're only really permitted to see if the CSRT followed its own procedures.

REP. DELAHUNT: So there's no way to challenge the facts as reported by the combatant status review panel?

MR. AZMY: That's exactly right. So counsel in a DTA proceeding cannot present new evidence. You presume the evidence by the CSRT is correct. So in this case --

REP. DELAHUNT: And that's as if it was an irrebuttable presumption.

MR. AZMY: It's fixed in fact and cannot be contradicted by any objective fact to the contrary. So in this case --

REP. DELAHUNT: Let me take advantage of the fact that there are five attorneys before me. Do any of you consider that to even, in any way, to reflect due process? Colonel Abraham?

MR. ABRAHAM: Sir, if I may -- as a member of the CSRT panel, panel 23, that -- I'm sorry.

As a member of Tribunal panel 23 that found the detainee that was subject to that tribunal not to be an enemy combatant, a panel that was overturned a few months later, not only do I as a lawyer not find that to comport with due process, but at the time of our hearing, we did not accept those presumptions as irrebuttable, a position that was not shared in the vast majority, if not all, but few of the CSRTs.

REP. DELAHUNT: Colonel Abraham, I'm going to ask you to exercise some restraint. I really want to get to you, because you have as the saying goes, the inside view of this process and that does not necessarily exclude consideration of a hybrid court, if you will.

And I see Professor Sulmasy --

MR. SULMASY: Mr. Chairman.

REP. DELAHUNT: Please proceed.

MR. SULMASY: I just think this begs that answer, because what we're talking about -- in terms of the CSRT, you've to look at it from the law enforcement perspective.

If you would look at U.S. former federal prosecutors and other lawyers on the panel, or from a law of war perspective, which would be presumptively the Article 5 tribunals, which still are embodied in the Geneva Conventions which are similar and there's no appellate right from a -- in Article 5 procedure for -- that's presumption as prisoner of war in combat.

So I think you have this distinction again that begs the need for something, because this is a unique entity and a unique conflict.

REP. DELAHUNT: I take it -- I take it, Professor, you are not an advocate necessarily for the CSRT process.

MR. SULMASY: Correct. I think that -- but the confusion with the CSRT --

REP. DELAHUNT: And we now have 250 -- 275 detainees --

MR. SULMASY: Yes, sir.

REP. DELAHUNT: -- that are in limbo. I just want to go back to the issue of association and if we could swap once more Mr. Azmy with Mr. Sulmasy, I want to be clear if this -- if the standard of support individuals and organizations hostile to the U.S., does this incorporate the necessity to find an awareness on the part of the individual?

MR. AZMY: No, under the enemy combatant definition used as part of the CSRT, mere support does not -- there need not be knowledge, there need not be materiality, and there need be their intent, and you don't have to believe me, the government conceded as much as -- in part of this litigation when they conceded that hypothetical example involving a little old lady from Switzerland.

REP. DELAHUNT: The little old lady from Switzerland -- tell us please about the little old lady from Switzerland.

MR. AZMY: Suppose she writes a check to what she believes is an Afghan charity that turns out to be a front for the Taliban or al Qaeda, could this person be an enemy combatant under the definition used in the CSRT?

The government has said, yes, because there is no intent or knowledge requirement. Could this woman be taken to Guantanamo, Judge Green asks; the government says, yes.

REP. DELAHUNT: So it's the government that's saying yes in this case.

MR. AZMY: Absolutely, and the answer to that question had to be yes. The time that this hearing took place in December of 2005, the United States had rounded up hundreds of people who were legally, if not physically, little old ladies from Switzerland.

So necessarily -- and they had justified their detention -- so necessarily the answer to that question would be, yes, in the bizarre CSRT legal regime.

REP. DELAHUNT: Well, I want to thank you, Mr. Azmy. I certainly want to thank Mr. Kurnaz. Let me echo the statements of all that have spoken relative to your particular situation.

And I wish to convey to you, sir, that while recognizing what you've been through and the experience that you've had, please know that the American people are good people, a moral people that take pride in what we stand for.

Sometimes, there are occasions when our rhetoric does not match our deeds. But here in our government, under our system, we work diligently to redress the wrongs that we perpetrate, and we are not embarrassed to say that we made mistakes.

That's what being an American is all about. That's what being a true patriot, an American patriot is about. Yes, we are human, we do err, but we will do all that we can to rectify the mistakes that we have made.

And I'm going to excuse Mr. Kurnaz and thank you so much for your participation today. It was very revealing and now I'm going to --

REP. MORAN: Mr. Chairman?

REP. DELAHUNT: Okay --

REP. MORAN: Mr. Chairman, could I ask one question?

REP. DELAHUNT: Sure.

REP. MORAN: Is the witness aware of any recording, whether it be a transcript or a video recording when he was told for example, to sign papers that he knew were untrue under threat of further punishment and indefinite detention?

Is there any evidence that we have that there is evidence exists that this took place, or was it all in a secret proceeding -- unrecorded proceeding?

REP. DELAHUNT: Mr. Azmy, if you or Mr. Kurnaz could respond to Mister -- Congressman Moran's question -- if you're aware.

MR. KURNAZ: I'm sure there are many opinions about those things, but I don't know if they did destroy it after or not, but there was -- in the interrogation rooms there was cameras.

But I don't know if those cameras -- it worked or not, if there was -- if they did took films of us or not, but there was cameras in the room.

REP. MORAN: So there were cameras in the room, you just don't know whether they were recording or not. Well, that's interesting, Mr. Chairman. There may be evidence available that corroborates this testimony, and obviously we have every reason to believe it, as does the German government.

Thank you. I'm sorry for the interruption.

REP. DELAHUNT: No, thank you, Mr. Moran. And Mr. Kurnaz, once more thank you for your participation today. And we will excuse you from this hearing along with your outstanding attorney, Mr. Azmy. Thank you. And Mr. Docke.

MR. : (Inaudible.)

REP. DELAHUNT: And let's continue with our -- the rest of our panel.

Mr. Stafford Smith?

MR. SMITH: Mr. Chairman -- is that working? Okay. First let me say thank you very much for the invitation to this hearing. And also as an American -- albeit one with a slightly strange British accent -- let me say that you folks holding this hearing is what makes me proud to be an American.

And I'd like to take this opportunity, if I may, Congressman Moran, to thank you personally.

We haven't met, but you have been immensely helpful to my military co-counsel Lieutenant Colonel Yvonne Bradley. And I just want to thank you for doing that. Thank you, sir.

A reputation is very hard to win and very often easily lost. And I do want to focus mainly here on what we can do in the future to repair the damage that we've created.

But I think really what I bring to the table today is mainly the 80 odd prisoners that my office has represented down in Guantanamo Bay, where we have tried to help repair the United States Constitution, which is, Mr. Ranking Member, I think something we could teach the Europeans. The Constitution would be a very fine idea even in my other home country, Great Britain.

But let me tell you just about three of the prisoners who are still in Guantanamo Bay, whom my office represents, because this is what we need to repair right now.

One is a chap called Muhammad Hussein Abdallah. He is a teacher and he is the father of 11 people, originally a Somali refugee.

He left Somalia many, many years ago to escape the early days of the conflict that we sadly know continues to this day. And the family is settled in Pakistan in the early '90s and he was recognized as a UNHCR refugee in 1993.

And for the next several years, the Abdallah family lived quietly in Pakistan minding their own business. Mr. Abdallah taught orphans at a Red Crescent school and a place called Jalozai, a refugee camp outside Peshawar, which was housing many Afghan refugees who themselves had fled from the conflict in Afghanistan.

One night Pakistani soldiers burst in, grabbed him, and he is one of the many people -- Mr. Chairman, you mentioned bounties -- he was one of the many people who were sold to the United States for bounty.

Now, look, we all recognize -- everybody now recognizes that Mr. Abdallah is innocent. The United States military has recognized it, and conceded by everybody, and yet, he is still in Guantanamo Bay.

And it's been recognized for months and months, indeed going into years now. And the question is why, and the question is why we are not achieving something to get him out of there.

And part of the problem is that the different sides are not talking, that we as the lawyers, who could help immensely in finding locations that these people can be taken to, the State Department won't even talk to us.

I have a member of my staff in Somaliland right now. Somaliland is recognized by our government, it's stable, my staff member is talking to their government right now; they are willing to take him back. And all we want is to be able to talk to the State Department so we can get one person back.

Mr. Abdallah is a granddad, he has limited years left on this planet, and it's very urgent for him that we get him out of Guantanamo Bay to spend his last years with his grandchildren and his family.

Second person I want to talk about, Mohammed el Gharani. And it was mentioned earlier on about cigarettes being stubbed out on his arm; that happened to him. And look, I've seen it, I've seen his arm, it's pretty obvious when cigarette burns have been used, and the prisoners don't have cigarettes to do it to themselves in Guantanamo Bay.

He is indeed one of the prisoners who were interviewed by the FBI and you mentioned the report that came out today. I sat in a room while the FBI questioned him about the abuse that they saw of my client. And so it's certainly not just coming from me or from Mr. el Gharani. He was 14 years old at the time he was seized in Pakistan. He is now 21, he is still there; he's spent over six years in U.S. custody without any trial.

He is originally from Medina in Saudi Arabia although he is a Chad national. And he is now recognized as a Saudi Arabian national. And one of the great tragedies of the racism in Saudi Arabia is if you are not a Saudi national and you have black skin, you don't get to go to secondary school.

And the reason he ended up going to Pakistan was to learn computers and learn English in Pakistan; he had only just got there when he was snatched up, sold for a bounty, and indeed ended up in Guantanamo Bay.

And he was held -- when he was held by the Pakistanis he was hung by his wrists also, and you know, one of the sad things that I've been involved in over the last few years, just as a matter of interest, is looking to see what the Spanish Inquisition called the stress position, when they used it.

And maybe hanging by your wrists doesn't sound so bad until you learn that the Spanish Inquisition called that strappado. And they did it because it dislocates your shoulders. And it is excruciatingly painful.

And it's the same thing that Mr. Kurnaz was talking about a little while ago. When I first got to see him in 2005, it reflects on some of the tragic mistakes we made down there, that the military thought he was 10 years older than he actually is.

And I made the delicate suggestion that perhaps we could figure it out by getting his birth certificate. It's not so difficult. And we got that from Saudi Arabia, confirming that he was born in November 1986. And he had indeed been 14 at the time he was seized in Pakistan.

And you know, the main allegation that's been made against him over all these years that remain to this day is that in 1998, he was a member of the London cell of al Qaeda.

Well, if that's true, he was 11 years old when he was somehow transported there by the Starship Enterprise because he had never been out of Saudi Arabia. And I'm glad to say actually in one of his recent interrogations that the guy who was doing it apologized to him that he was still required to ask these silly questions about whether he was in the London cell of al Qaeda.

This child has made repeated suicide attempts and he has tried to slash his wrist. And you know, he still is a kid and we should be treating him as a child rather than as -- the way he is being treated in Guantanamo Bay.

He is in Camp V right now. I spent 25 years representing people on death row in the Deep South and I've been to all the prison where people are held on -- in -- down there. And I've got to say I have not seen any individual who is held under the same circumstances as Mohammed is in Guantanamo Bay today.

And you know, I invite you -- long ago when they raised this red herring that you shouldn't be allowed to talk to my clients because they have Geneva Convention rights that give some privacy, I had my clients sign waivers because I want them to talk to you and I want them to talk to anyone who wants to go talk to them quite frankly.

And I'll give you waivers today and I don't need to be there, you can talk to any of these three people we are talking about by yourselves, be my guests. All I want you to do is have that opportunity.

The third person I want to talk about is the chap that Congressman Moran, you've been very helpful for us, with Lieutenant Colonel Bradley.

He is a British resident, he is from London, he was seized by the Pakistani immigration authorities at Karachi Airport on the 10th of April 2002, when he was trying to take a plane back to Britain.

Now, he was interrogated by both the U.S. and by the British in Pakistan. The British said to the United States that he was a nobody, a janitor; and indeed, he was a janitor from Kensington.

Nevertheless, the U.S. came to the conclusion that he knew more than he was saying, so they rendered him. You know, when I went to law school in New York at Columbia many, many years ago, it never occurred to me that one day I would be sitting across the table from one of my clients talking to him about how my government took him to Morocco and it wasn't on some Club Med vacation.

And they had him tortured about 18 months including -- and excuse me for saying this in public -- they took a razor blade to his penis, and talk about photographs. We know the name of the woman, the U.S. personnel who took the pictures of his genitals when he was taken back into U.S. custody on January 21, 2004.

We've done a lot of investigation on this and I'd be glad to give you the name. Please issue a subpoena. I would be very grateful if you would issue a subpoena for me. There are some things I can't talk to you about here because they are classified. I can't talk to you about, you know, if I happen hypothetically to have photographs of things that would be helpful.

I wish someone would subpoena because I would love the opportunity for the world to see, or you guys to see such issues that perhaps would go beyond merely taking my word about some of the things that Binyam has told me.

But you know, the problem with all of this process, all we ask for someone like Binyam Mohamed is give him a fair trial or send him back to Britain. And you're quite right, Congressman, to say the Europeans should step up to the plate.

I'm glad to say that largely for bullying through my office, we've got them to take four people so far and we are dealing with China to help out a little more on that, but the British government --

REP. DELAHUNT: Just one -- because you made references, I think it's time for our European friends -- I think it's time for our European friends to put up or shut up. And they -- it's very easy for them to put up.

They feel that we've done a tremendous amount of wrong here, let them take in these people. And we may well have done wrong with a number of them. We need to admit that, and not to have policies where some of these things happen.

But if they are so outraged as they suggest, put up or shut up, take these people in, or quit yakking as if you are morally superior to us.

MR. SMITH: Well, and I agree with that, but you know, we've got to do another thing from our end because when the British finally did take four British residents back who were not British citizens, what the Department of Defense did here was the moment the British had done that, doing us a favor, they issued these ridiculous press releases where I was threatening them with defamation investigation, where they wanted to say, well, we didn't make a mistake after all, let me tell you how bad these dudes are.

We cannot ask our allies to do the right thing and then stab them in the back the moment they do do the right thing. There was an agreement between the British government and our own government not to do that briefing against these people. We did it, and we embarrassed them.

So you know, there're two sides of this story, but I'll tell you one thing. The British government has agreed to take Binyam Mohamed home; they're begging for him to come home right now. And we need to send him back to Britain, and let the British take responsibility for him, because if we don't, we are embarrassing our closest ally.

I think I'm schizophrenic here since I got a British passport too, that we sued the British government just two weeks ago because they've got evidence that Binyam was tortured, they've got evidence that they told the United States he was a janitor in Pakistan, they've got evidence that they knew he was going to be rendered to Morocco. And they are going to have to turn it over to us, and a British court will order them to turn it over to us.

And if we leave them in the position that Binyam Mohamed is being held in Guantanamo Bay, it is my job sadly to embarrass the British government and force them to turn that evidence over. But it's not a nice thing for us as Americans to do to put them in that position.

So in this conflict, so I think Binyam Mohamed is certainly a strong example of why we need to be closing Guantanamo Bay. But let me conclude -- sorry.

REP. : Mr. Chairman, if I might just say, I can confirm this. His sister is an American citizen and a constituent of mine who lives in Northern Virginia.

We can verify everything that Mr. Stafford Smith has said and obviously he would be questioned, but I know this to be a --

REP. DELAHUNT: I realize -- I don't want to want to cut anybody short, but we do have two other witnesses that we want to hear from. And then we are going to request that you stay while we go through vote.

But I think that -- and let me implore you to stay, because this is too important a hearing not to have the benefit of an exchange with all of you because I believe this is the first time that many Americans will have heard this from people who know what they are talking about and are not trying to paint a picture that is so -- I don't want to use the word "false," but I will.

But let me go to Mr. Denbeaux and could you -- we are going to get -- you only get about five or six minutes because I want to get to Colonel Abraham as well.

And then when we come back, we'll have significantly more time. And everyone on the panel here of course is requested to return.

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REP. DELAHUNT: Professor, can I ask you to focus for a while on the issue of recidivists?

MR. DENBEAUX: Yes.

REP. DELAHUNT: When we were here last week, there was a representation made through the ranking member that 30 -- those who had released had return to the battlefield, if you will.

MR. DENBEAUX: Yes.

REP. DELAHUNT: And then when you conclude there, I'm going to ask the good colonel to again forbear. We want to have -- we're going to return and hear from him, so if you could take the next three or four minutes that would --

MR. DENBEAUX: Yes.

REP. DELAHUNT: -- accommodate everybody.

MR. DENBEAUX: In July of 2007 the Defense Department published a press release saying that 30 people had returned to the battle. And it turns out that we went through and reviewed that entire press release every single statement in it. And we evaluated who was there and who wasn't.

And I'm sorry that Congressman Rohrabacher isn't here, because I will accept of challenge of pointing out the errors in that report at any time that he requests it and it's included --

REP. DELAHUNT: I'm sure he'll request it.

MR. DENBEAUX: Well, I've actually included it in some of the materials I submitted as part of my testimony. But a few things in that report; one is the Defense Department inexplicably claims that it doesn't keep track of the people who it's released.

It's puzzling to me that they would release people and not bother to keep track. The press release says they based their decision on various intelligence agencies' reports and news reports.

So the entire premise of these 30 people is predicated on no systemic review and dependence to a large extent on in fact press report. Now, I'd like to make it clear that to get to the number of 30, they had to count, as part of the 30 who were recidivists, the five Uighurs who were released as been described by Mr. Willett.

That means of the 30 people who returned to the battlefield, five of them are the Uighurs that everybody agrees should -- never was on a battlefield, and they've never returned to a battlefield, but they've engaged in propaganda activity against the United States.

That seems to be as best we can determine some sort of op-ed piece was written complaining about the circumstances.

Another three are known as the Tipton Three, like Mr. Stafford Smith is well aware of them. They were released to England and the hostile act that's part of the 30 was their making a documentary called "The Road to Guantanamo."

So right off the bat we start with 30 people, eight of whom no one would claim had returned to the battlefield. Some of the others, they don't -- they only identify seven. And I'd like to make it clear that of the seven, at least two who supposedly returned to the battlefield from Guantanamo, were never in Guantanamo.

And of the -- we have given the benefit of the doubt to them as to two others, because even though their names aren't there, and aren't listed as being in Guantanamo, there would be some circumstantial evidence that might mean they've been in Guantanamo.

But in fact, it's certainly possible under the government's own records four of the names alleged to have returned to the fight from Guantanamo were never in Guantanamo; two absolutely were not.

Of the remaining three, two of those in fact have never returned to the fight in the sense they've never been captured on a battlefield, they have never been killed. One person seems to have committed suicide and one person was shot in Russia in an apartment complex at some point, and he is listed as having returned to the battlefield.

And if I may end, there is this incredibly painful event involving what we call ISN 220. And that was the one referenced by Mr. Rohrabacher. This is the man who supposedly, and I presume it's true, carried out a suicide bombing in Iraq.

Now, I'd like to make one thing clear. That man was released in 2005, not as the result of any lawyer's activity, and not even with the permission or approval of the military. The military at both his CSRT proceeding and his ARB proceeding found him to be exceedingly dangerous. Indeed, the military concluded that this person, if let go, would go kill Americans.

REP. DELAHUNT: Why was he released?

MR. DENBEAUX: You know, my central point I was thinking of making, but I'm not clever enough to do it, is to simply to ask this question, who released this person and why?

I would love to have someone in the United States explain what it was that caused ISN 220 to be released and why, after the military said he will kill. This is somebody who -- West Point did an evaluation of some of our work, and they ranked people in terms of dangerousness. And the highest level of dangerousness, they associated four criteria.

The person that the government released after the military gave its reasons for why they shouldn't, that person met three of the four criteria that the West Point study said makes him the maximum dangerous person in the United States.

In fact, if you look at the criteria that we have there are only four people in Guantanamo who were both fighters for the Taliban that committed hostile acts and ever been in Tora Bora.

This person that's released was one of those four. He is in the four --

REP. DELAHUNT: I think that's a very good question, and I'm going to ask you, Professor, to deal with my staff and we will pose the question as to the rationale and the reason for the release of this individual who, I think we agree, is a danger. To me what it says is there is no thoughtful process.

MR. DENBEAUX: No --

REP. DELAHUNT: There is no rhyme nor reason, and this is a predicament that impinges on our moral authority as well as protecting our national security.

MR. DENBEAUX: And if I may close, I think this goes to the whole defects in the CSRT process. Everybody is found to be an enemy combatant, and they are held in Guantanamo unless the government decides to let them go and the reasons they let them go seem to confess the error of their intelligence.

One of my students said to me, how could you have a press release bragging about making mistakes on who you released? And then another student said it's worse than that. They're bragging about 30 mistakes and most of them weren't mistakes.

They actually felt as if our Defense Department is claiming they've made 30 mistakes in a press release when in fact the best they could claim is two, and then of course claiming that the release of 220 somehow proves something other than incompetence that threatens our national security is hard to imagine.

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REP. DELAHUNT: Thank you, Colonel Abraham. And let me note that I am very proud to be a lawyer and I think before me I have five men who reflect the best in terms of American jurisprudence.

And I believe that what you all are doing, contributing to -- ensuring that on this issue there is no longer silence. It's the end of silence, because you are right, Colonel Abraham. It's important that we all speak out and not just simply to posture, to criticize for the sake of political advantage.

But to remember that this is about what we are, who we are.

In many ways it's not about the detainees at Guantanamo, it's about us. It really is about us. And if we should stay silent as other societies have when atrocities or mistakes, however you want to describe it, have been made, we fail our duty. We fail our country, we fail America. We can't let that happen.

I think you've probably heard today implicit in the questions that various members of the panel posed that we are waking up. And I want to convey, as I hope I did, to our witness that I have great belief in the goodness of this country and what we stand for and if we've tarnished that city on a hill, that shining city on a hill, we're going to buff it up again. We are going to reclaim it.

Because it's important that the world looks to the United States for the moral leadership in many respects that we've earned through our history, whether it be slavery, whether it be discrimination against women, or any minority group. And that our nation is powerful only because of the moral force that it exerts in this world.

You know, I often hear about a quote, I think, President Bush, it might have been Vice President Cheney, about they hate us because of our values. Now, I do not believe that for a minute.

I think that they are disappointed because there is a belief that we have not been true to our values. Well, we're becoming -- we are complying with our values today, the future, and in the past.

Representative Schakowsky, if you want to make any kind of statement or ask any kind of questions before I proceed --

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REP. DELAHUNT: I think if I can interrupt for a moment, I think the point that you make, the distinction between a closed justice system and an open justice system and recognizing that even in an open system, the frailty of that system.

I sponsored legislation years ago that I'm happy to say actually passed and was signed into law, you know, it was called the Justice for All of the Innocence Protection Act. But it was predicated on the huge number of exonerations in various cases, but specifically capital cases.

REP. SCHAKOWSKY: None more than in Illinois.

REP. DELAHUNT: Right. And there were 13 I think on death roll in Illinois that were exonerated. That's why, in a closed system the ability to, or the capacity of that system to be examined and reviewed and subject to legitimate checks and balances is fraught with peril.

Professor Denbeaux.

MR. DENBEAUX: You know, I think part of this is buried in the problem of the evidence. I mean, it's not just the problem of the bounties; if U.S. Forces only picked up 5 percent of these people, they are being held based on evidence that's provided by, whether it's tribal chiefs, warlords, Pakistani officials, and there is no way to evaluate it.

So I think the first problem you have is you're brought in, we then pay money for you. And I think there is a sense that you bought it, you broke it, you're stuck with it. We've now paid money for somebody. We have no way to evaluate the evidence.

And as one military lawyer told me once, he said the normal way you investigate crimes is you've got a problem and you try to find who did it. Here he said, we had all these people brought in and the question was reverse. The question was, who should be released?

And in a time of fear, no one wants to release somebody, and therefore, if somebody has paid money to a tribal warlord who's said he is a bad guy, the weight of -- the force of the responsibility for releasing somebody, is enormous. And we now know in fact that the government is claiming --

REP. DELAHUNT: I want to explore something you said, it evoked a question to my mind that I'd like to address that to Colonel Abraham. Because you were there -- you were inside the system. More than anyone in this room or probably anyone in this country, you saw a firsthand the frailty.

Could you describe for us -- I would surmise that the pressures to secure convictions was immense. I mean, I'm reading here a quote attributed to the general counsel of the Pentagon. A Mr. William Haynes II informed Colonel Davis, who you can identify for us in your response, that we can't have acquittals at Guantanamo. We can't have acquittals at Guantanamo. When, of course, if there were acquittals, it would add -- it would have enhanced the credibility of the process.

Colonel?

MR. ABRAHAM: Thank you, Mr. Chairman. There are two different elements or aspects of the legal or quasi-legal proceedings at Guantanamo that need to be understood as to their distinctiveness -- both as to their distinctiveness and the way that they complement one another.

Ultimately that of which we speak are the commissions or the trials that were to be held, and of the particular concern that was raised as to what happens if somebody is essentially exonerated after being held in Guantanamo for years, at what were essentially going to be the trials of the century; literally trials demonstrating the existence of transnational terrorism, of international threats to American security.

But long before the first of those trials was ever going to be held, because you asked the question about what I did everyday that I was there. I was in Crystal City, I was here in Washington, DC for most of the time. The research teams were there, the command leadership element of OARDEC was here.

And when you ask the question of what was the command influence to convict -- or in the case of the tribunals, to find somebody to be an enemy combatant, what you really do is you reverse the paradigm. Bear in mind, you had people of good conscience and good will largely populating that organization.

But the context in which they were there was one unlike anything that you would ever imagine anywhere else. 9/11 had happened, Iraq had been going on for some time, there were instances of international terrorism known or believed to have existed, and then suddenly you're assigned to an organization where you're told before you get there, as was I, the worst of the worst are there.

During the year that I was in the Pacific theater, I knew very well of the activities of one of the worst of the worst. He is one of the people who were there. He has no problem acknowledging the activities in which he has participated. He is one of the people that were there.

I did not go to OARDEC with the illusion that 550 of his peers were there at that time. I went with no assumptions regarding who was at Guantanamo or why they were there, but I will tell you, in all candor, that that was not the common experience.

My experiences prior to my being assigned to OARDEC certainly were not typical; they were anything but typical. I was one of very few intelligence officers assigned to OARDEC. I was one of very few lawyers assigned to OARDEC, but not in a legal capacity, I was there as an intelligence officer.

But when I was asked to come to OARDEC I was specifically told before I got there that that combination was precisely the kind of thing that they were looking for. But when I got there what I found were very willing, very able people, that is, people who were able to perform tasks assigned to them, but regrettably were ill-equipped to deal with the kind of legal and intelligence issues that they faced from the moment they walked through those doors.

They were given information and told "accept it as being true," they were given information and told "accept it as being complete." And they were given information largely without any source, any attribution, any validation, and told, this is all the evidence that exists, do not presume that any facts exist other than those that you are given.

Add to that the problem that in most of the instances the people did not have clearances sufficient to deal with the type of information that is typically addressed through the types of organizations that would've been responsible for collecting the information in the first instance. And you begin to wonder within a few days of your assignments how people can do their jobs.

I recognized this almost immediately when I asked, what systems do you have for the processing of top secret information? And they said, oh no, we don't deal with that here, not in this building in Washington, DC.

I said, how many times have you gone to -- and I named four or five different organizations -- and asked them for information, and to three of the five organizations, the response was, "Who?"

This is not because of an intent on the part of anybody who were assigned to OARDEC to do ill to any of these individuals, but because we were told these were the worst of the worst, don't question it. We were told, better people than you have already decided that these people should be here. You don't want to be the one to let them go.

But I'll tell you, Mr. Chairman, on the Tuesday before Thanksgiving in 2004, I and two other officers, hearing evidence submitted to us regarding one of the detainees, said, no way, no how.

We drew the line there in one of the few instances, one of the few instances of OARDEC's history said, there is no credible basis for concluding that this individual is an enemy combatant.

After the moment of fear and panic subsided, running through the organization, we were told, leave the record open. We'd asked a number of questions that went not only to the quality of the evidence but the assessments that were made regarding that evidence, assessments that we were told were as irrebuttable in their conclusions as was the evidence itself.

But we resisted the temptation to accept it.

We asked a number of questions, the record was left open. The reporter came back to us a short time later and said, "I can't give you anymore answers. There's no more evidence."

The report was written indicating that that detainee, Al Ghazzawi, was not an enemy combatant. Two months later, our tribunal would be overturned. Tribunal 23 would be overturned by tribunal 32. Who -- the justification for their having been established was the claim that a number of the representatives of the prior tribunal were no longer assigned to OARDEC, even though I was still there and knew nothing of tribunal 32; unanimously concluded on largely the same evidence that Mr. Ghazzawi was and should remain designated as an unlawful enemy combatant.

But more significantly than the fact of the reversal of that tribunal decision was that the fact that in the prior month, the determinations that were made by the tribunals were whether or not the individual was or was not an enemy combatant.

But there was a subtle change that happened around that time. As the new designation would be whether they were no longer an enemy combatant. Mr. Ghazzawi remains at Guantanamo and I'm as convinced now as I was then, as I trust are the other two members of tribunal panel 23, that he did nothing to justify his presence nor his continued internment at Guantanamo.

REP. DELAHUNT: What do we do now?

MR. DENBEAUX: Mr. Chairman, could I add just one point to Congresswoman Schakowsky's question, which is Murat Kurnaz was determined to be an enemy combatant in Kandahar under this process. He was then determined again to be an enemy combatant in CSRT in 2004.

So when General Miller told you this has all been done and we know they're all bad guys, well, you saw Murat Kurnaz today. The only difference between Murat Kurnaz and scores of people who are still there is that his adroit lawyers somehow managed to get the chancellor of Germany to raise the issue with the president. It's not because there was any court process.

If it hadn't been for that diplomatic overture, he'd be there today. He would have a DTA case today that would be suspended on the question of what pieces of paper the court can look at.

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REP. DELAHUNT: Let me -- if I may, let me just ask all of you. We -- I think I hear numbers like 50 or 60 detainees whom everyone agrees ought not to be -- (off mike.)

Give us some suggestions in terms of how we expedite their release, presuming that there is a thorough review of the evidence to determine that they're not dangerous to the United States.

Mr. Abraham, if I can begin and it gives me a chance to respond --

MR. ABRAHAM: Thank you, Congressman.

REP. DELAHUNT: -- as well to something that Congressman Rohrabacher spoke of earlier. And that is the willingness of our allies to step up to the plate here.

I've done a lot of sort of private diplomacy myself on the behalf of the Uighurs trying to find a country who will take them. And I've been right up at the gate of it; I could feel it a couple of times. And you always hit the junior minister and the foreign ministry who says, well, why won't the United States take any of these people if they're so innocent. And I never have an answer to that question.

But I'm sure that if we showed a little leadership and if we paroled into this country a few of this population, there are a number of allies who also want to see the Guantanamo problem behind us, behind all of us and who would help. But as long as we have a flat refusal to do that, we have this impasse where our allies say, well, if you won't help, why should we.

I don't think this is a problem that we can't solve. But we have to participate ourselves if we're going to solve it.

Let me make an observation that in our last hearing, what I find particularly disturbing, when we speak about how we're viewed in the world, is that in the case of several of the detainees, permission was granted to the security apparatus of nations like China and Uzbekistan to come in and to interview these detainees. Do any of you have any information regarding that particular issue?

MR. SMITH: Certainly. I represent a man called Omar Deghayes, who is a Libyan who's now home in Britain. And he was, thankfully the British did take a non-British national, that he -- we were pulling together the information about all Libyans.

And according to his statement and this was consistent with various other people, the -- there was a group of Libyans who were brought to Guantanamo. It's logical. Obviously, they didn't fly themselves.

We have the flight log of the plane, in fact, that went and picked them up from Tripoli, brought them to Guantanamo Bay, it was an American plane, whereupon there's -- some choice words were used.

The Libyan delegation said to Mr. Deghayes, according to him, that "We can do nothing to you here. But when you come back to Libya, I personally will kill you" was one quote.

Unfortunately, a bunch of stuff had been shared with them on the plane over about why Mr. Deghayes was an opponent of the Gaddafi regime. Well, I'll tell you right here I'm an opponent of the Gaddafi regime too. I think he's a despot. But because of that sharing of information with the Gaddafi regime, they had therefore given evidence to the Gaddafi regime about why these Libyans in Guantanamo Bay should be persecuted if they were sent back to Libya. So it compounded the problem.

So fortunately, Mr. Deghayes is back in Britain. There is another 10, I believe, Libyans or not, who went through relatively similar unfortunate experiences in Guantanamo. We have compounded those issues, but it doesn't serve us to go into that too much. I think what we got to do is solve that problem now by finding them a place to go.

MR. : But Mr. Chairman, you asked the question, now, how do we solve the problem. One of the concerns is that there have been a number of individuals, a number of individuals both within this body and outside it who's said let the federal courts review the cases.

And the argument is very quickly made. But soon we'll have federal review of every POW detention and we'll have privates pulled off the battlefield to become witnesses in hearings.

But quite frankly, while I think this risk is overstated, we -- what we are addressing today is the 270. And the question at this point after seven years, a period of time longer than our involvement in World War II, a longer period of time than those individuals would have been POWs had they been caught on December 7th and held until Japan surrendered. I think it's time to say they need to be reviewed in a transparent process.

We had federal trials for World Trade Tower 1, when we had the car bombing the garage. Those individuals were successfully brought to justice. Their trials concluded without risk of exposure of intelligence information outside of security channels.

REP. DELAHUNT: Well, to corroborate your point, I mean -- again, I'm just using the number 60 or 70 that, there appears to be no disagreement, pose no threat, were not enemy combatants because of the failure of the initial phase embodied in this combatant status review tribunal.

And I mean, we find ourselves now in this quandary too where many of them are, for all intents and purposes, stateless because they can't return to those countries that have a systemic -- have a record of systemic torture, although we do -- we have done that.

We had a hearing here in this committee, where a Syrian Canadian was sent to Syria rather than Canada based on diplomatic assurances. And in a letter from the then deputy attorney general, we were told that to send him to Canada would have been prejudicial to the United States.

I'm waiting for some explanation as to why we could not send them to our neighbors to the north. I don't -- I'm unaware of many terrorist groups operating in northern border.

MR. : Mr. Chairman, I think one way to take care of this is to actually have the military commissions work, as I think you alluded to, allow them to be tried in a military commission. If they're acquitted by the military commission while they're under the MCA, then so be it.

REP. DELAHUNT: But you say that, Professor, and yet we have a judge in the system -- and this is recently, on May 10, Captain Allred of the Navy directed that the Brigadier General Thomas Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution.

MR. : That's the --

REP. DELAHUNT: That's devastating.

MR. : That's the --

REP. DELAHUNT: That is an indictment of the system.

MR. : It's -- I think in that regard, sir --

REP. DELAHUNT: I mean, again, and this is not -- let me interrupt you and I apologize. This is not, you know, a conservative from California or a liberal from Massachusetts talking. This is a Navy captain, clearly part of the Judge Advocate Corps, that's saying that the senior official has prejudiced these hearings, these operations because of a bias in favor of the prosecution.

MR. : Certainly, the first one with the legal advisor being removed. It does not mean he's removed permanently, but I think of all of our alternatives right now, it would seem best to try to use the military commissions.

Again, you know that I've advocated for a third way, which obviously others might disagree with. But I think on two points on that, if I could, Mr. Chairman, is when someone says we have two existing ways to do these now, we have a civilian way and the military commission and they exist as Professor Denbeaux alluded to, I think that's true.

But I think it's incumbent on us, particularly as academics, as policymakers, to look at other ways to do this because it's clearly not working in either module, won't necessarily work. And it's actually a duty of ours, I think, to look at different ways and think outside the box. And I certainly include myself in that.

And one comment dealing with the -- the legal advisor, Mr. Chairman, the pressure to secure convictions, which is really an inherent problem in the whole military justice process, even within courts-martial, is the unlawful command influences of law within the military system. And it's something that I -- we all should be concerned about it, why we need to perhaps have civilians oversee the system. I'm not sure we'll ever get away from that.

But I -- but historically, what Colonel Davis alluded to, during the Kieran (ph) case, President Roosevelt actually, in the Kieran case, directed Attorney General Biddle and the (inaudible) -- army working for Secretary Stimson at that time, those exact words, he wanted convictions and he wanted them all executed. And that's a historical fact.

MR. : Mr. Chairman -- (inaudible) -- it's very important not to get confused and off the track on these military commissions. Military commissions are about crimes. Almost no one, almost literally no one at Guantanamo is charged with a crime or will ever be tried for any kind of crime in any kind of system. That there are --

REP. DELAHUNT: It's a very important point and well noted.

MR. : So we've got 255 people who are never going to be -- doesn't matter what kind of process you have for crimes, they're not going to be charged. They haven't been charged for seven years; they're not going to be charged. The question is what do you do with those people.

And as we know, you know, the -- if there were at one time a case, I can assure you after seven years, having been a prosecutor myself for 22 years, that case is gone. That case is just out the door, out the door.

Again goes back to what we should have done early on rather than finding ourselves in this quandary.

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REP. DELAHUNT: If you'd yield for a moment. What I suggest, Mr. Rohrabacher, is that you and I begin a process, our own process. And I think the most logical population for us to focus on, because we've heard considerable testimony on the Uighurs.

We know that the Albanians have accepted five. I would suggest, it's a worthy project for this subcommittee to take their cause to determine the facts as best we can, and to press our government and other governments to accept that, and not to allow shame that will be visited on us by international opinion if we allow them to linger any longer in Guantanamo. It is just not right.

REP. ROHRABACHER: The innocent people, you are absolutely right, and we need to make that determination. I will have to --

REP. DELAHUNT: Let's make that determination.

REP. ROHRABACHER: Let me state for the record again. You go to a federal prison right now, and as much as I -- as you can tell, I'm very aware that prosecutors target innocent people and go after them, or go after somebody and get them, just once they have been targeted.

Even if a prosecutor finds they are innocent, they'll go on with the prosecution. We know that. We've seen it dozens of times. Okay, but that doesn't mean our jails are filled with innocent people.

That means there are some innocent people in jail. And you visit our jails, Mr. Chairman, and you are going to find almost every one of the prisoners will assure you that he is innocent of the charges against him.

Almost everyone of the prisoners. There's no guilty people in jail. And I suspect --

REP. DELAHUNT: Mr. Rohrabacher, I've put a lot of people in jail. Some of them are still there, thank God.

REP. ROHRABACHER: Right.

REP. DELAHUNT: And I can assure you that many of them would not claim they are innocent.

REP. ROHRABACHER: Well, we know this that there have been some people at least --

REP. DELAHUNT: I'm just trying to --

REP. ROHRABACHER: Okay, I know. But we are --

REP. DELAHUNT: I'm trying to get you to exercise some restraint in some of your -- about prosecutors.

REP. ROHRABACHER: We have some people who we know have been cleared for release, like the Uighurs. Okay. And there is no excuse that we keep people who have been cleared for release incarceration. We can agree on that.

And in fact, that's one of the challenges that we have for our nitpicking European friends right now, except at least those people who have been cleared for release.

And a lot of times what's interesting, they have been cleared for release by the very countries who now aren't accepting them.

REP. DELAHUNT: Would you agree that it ought to be the position of the United States to accept some of those people whom we are unable to find an appropriate receiving country to settle in parole here?

REP. ROHRABACHER: I'm going to tell you something very heretical --

REP. DELAHUNT: Heretical.

REP. ROHRABACHER: Heretical right now. And that is I would hope that -- (inaudible) -- we are talking about 270 people, I would hope that our European friends who aren't doing their share in this battle against radical Islam that they might want to pick up that rather than have the United States pick up that responsibility.

Whereas our guys are the guys getting their ass shot off, and that these people are hiding behind the protection, as they did during the Cold War, and as they would have lingered under Nazism if we wouldn't have landed there to save their ass, maybe it's about time they do something.

REP. DELAHUNT: I would ask the gentleman to refrain from profane --

(Laughter)

REP. ROHRABACHER: Yes. Anyway the bottom line is I think our European allies can pick those -- pick up that responsibility, especially considering their nitpicking us about it. Or they adamant, they feel very strongly about it, let them do it.

And in fact I would not oppose efforts by them to take all of these prisoners off of our --

REP. DELAHUNT: Noting that you haven't answered my question, let me recognize Mr. Stafford Smith. I think he wants to respond.

And while he -- actually -- while he's doing that, I'm going to request that the gentle lady from Texas take the chair, the gavel, and I will have to excuse myself because I do have another engagement.

And I am so grateful for your forbearance, your patience, and I can't express how significant your testimony has been. I think you have opened some eyes, and we're in your debt.

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