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Letter to Defense Secretary Leon Panetta

A bipartisan group of U.S. Senators today sent a letter to Secretary of Defense Leon Panetta regarding detainee interrogation and transfer policy.

The Honorable Leon Panetta
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000

Dear Secretary Panetta:

Media reports last week about the capture, interrogation on board a Navy ship for more than two months, and decision to transfer a detainee from military custody overseas to the United States for civilian trial raise a number of serious policy issues.

We are very concerned that this policy appears to be a circumvention of the clear intent of many in Congress that terrorists captured aboard under the Authorization for Use of Military Force should not be brought into the United States for trial only to be released as a result of an acquittal, a short sentence or some other action as inability of the United States to deport an individual that allows the terrorist in the United States to remain here and be released into the general population.

Recent testimony by Vice Admiral William H. McRaven before the Senate Armed Services committee highlighted these issues even before the decision to transfer Ahmed Abdulkadir Warsame to New York for civilian trial was announced last week. According to Admiral McRaven, detention of high-value terrorists who are captured by US military forces outside Afghanistan and Iraq is subject to case-by-case decisions about where detention could be carried out because the United States lacks an overarching policy for how to handle such detainees. Admiral McRaven was not the first to note the obvious negative impacts of the lack of such a policy. Your predecessor, Secretary Gates, the Chairman of the Joint Chiefs of Staff, Admiral Michael Mullen and you, have all recently testified before Congress that the United States lacks a clear answer to this question. We believe this is an intolerable situation.

In answers to questions at his nomination hearing, Admiral McRaven testified, "In many cases, we will put them on a naval vessel and we will hold them until we can either get a case to prosecute them in US court or...." In response to a follow-up question concerning how long detainees could be held at sea, Admiral McRaven replied, "Sir, I think it depends on whether or not we think we can prosecute that individual in a US court or we can return him to a third-party country." McRaven concluded by saying, "If we can't do either one of those, then we'll release that individual and that becomes the-the unenviable option, but it is an option."

In light of this testimony as well as that of other senior officials, and the specific circumstances of the Warsame case, we ask that you provide answers to the following questions
Does the US have an established, consistent policy for detaining terrorists captured or turned over to US military forces outside the US, particularly those captured outside Afghanistan or Iraq?
Do disposition options differ based whether a detainee may be held under the Authorization for Use of Military Forces or the President's constitutional authority as Commander-in-Chief? If so, how and why?
Is transferring such a detainee to the detonation facility at Guantanamo Bay an option that is presented for consideration to the President's senior national security advisors?
If not, what prevents that option from being considered given that the detention facility at Guantanamo was created to house law of war detainees and the closure of Guantanami is unlikely to be achieved until a broader solution to the disposition of existing long-term detainees held there is developed?
In how many cases since 2009 have captured terrorists been held on Navy ships, excluding those who were captured as party of anti-piracy operations?
How many such detainees held at sea were transferred to a third-party country?
What were the terms of such transfers if they occurred, and did such transfers result in trial, incarceration or other measures to mitigate the threat to the US and its allies?
Would individuals who have served a modest criminal sentence or those awaiting deportation be returned to military custody?

Thank you for your prompt attention on this matter.
John McCain, Mitch McConnell, John Kyl, John Thune, Joseph Lieberman, James Inhofe, Jeff Sessons, Saxby Chambliss, among others.

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