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Congressional Hearing, May 20, 2008

Subcommittee on International Organizations, Human Rights, and Oversight
Testimony of Murat Kurnaz
Rayburn House Office Building, Room 2172
May 20, 2008



My name is Murat Kurnaz. I am a twenty-six year old Turkish citizen, who was born and raised in Bremen, Germany. I currently live here in Bremen with my mother, father and two younger brothers. I would like to thank you for inviting me to address this Committee and the American people about the injustices of the prison camp in Guantanamo Bay, Cuba.

Although I have committed no crime and have never harmed anyone or associated with terrorists, I spent five years of my life in American detention in Kandahar, Afghanistan and then Guantanamo under terrible conditions that no one should suffer.

I have much to say to the Committee about my experiences, but I will try to keep my comments short because of limited time. I understand that my American lawyer, Baher Azmy, has submitted documents to you demonstrating my innocence and the unfair legal process in Guantanamo, which I hope you will also read.

1. My Personal Background

My parents are work-immigrants from Turkey. They came to Germany over 30 years ago. They are Muslims, but like many Turkish people in Germany, they are not very religious. In 2000, when I was about eighteen years old, I became more and more interested in Islam but not in any political sense. In the summer of 2001, I married a woman who lived in Turkey. My family made arrangements for her to come to live with us in Germany in starting in December 2001. In the meantime, I wanted to prepare myself to live a correct life with her under Islam. I wanted to learn to read the Koran in Arabic and to pray, which are very important to faithful Muslims. I decided this period of time would be the last chance to travel and study Islam before living with my wife together in Bremen, Germany.

I made contact in Bremen with a Muslim missionary group called Jama`at al Tablighi. My impression was that this was a peaceful, and not political, group which spreads the message of Islam in a peaceful way. They do charity work, teach people important values about family and prayer, and completely reject terrorism. (My American lawyer has submitted materials to the Committee about this group, which demonstrates that it has nothing to do with terrorism.) They suggested that I go to Pakistan: it is cheap and they have many of their schools and teachers there. I decided to go with a friend from Bremen who also wanted to learn to read the Koran. His name is Selcuk Bilgin.

When the terrorists attacked New York City on 9/11, I was horrified by their actions. I believe those who helped commit those acts should all be punished harshly. I condemn all forms of terrorism and the Koran instructs me that it is never permissible to kill yourself, or to kill women and children. I believe strongly that Osama bin Laden is perverting Islam by killing people in the name of Islam. I blame Osama bin Laden for having lost five years of my life. I already made similar statements to my Combatant Status Review Tribunal (CSRT) in 2004; this CSRT still falsely labeled me an enemy combatant.

Despite the terrorist attack of 9/11, I was not worried about traveling to Pakistan in October 2001. Pakistan is not Afghanistan, the war had not yet started and I had no idea a possible war could spread over the border to Pakistan.

2. My Time in Pakistan

In Pakistan I travelled with some of the Tablighis and visited several cities as a religious

tourist. I never went to Afghanistan and I never met with anyone from Al Qaeda or the Taliban. I also never came in touch with any weapons and I never committed any crime.

I had a return ticket to Germany – to rejoin my family and life there. On my way back to Germany, I was arrested by Pakistani police. I was traveling on a bus with many other civilian passengers. The police stopped the bus and removed me. They had no suspicion other than the fact that I was a foreigner with a Turkish passport and German residency.

After a few days I was handed over the border to U.S. forces. I was soon transferred to a U.S. military base in Kandahar, Afghanistan, and then later to Guantánamo.

I was later told by a U.S. interrogator that the U.S. paid $3000 bounty for me.

3. My Treatment in Afghanistan and Guantanamo

In the American prison camp in Kandahar I was shocked by the awful treatment prisoners received. I had a very high impression of Americans all my life, so I couldn’t believe Americans would do these kinds of things.

It was wintertime and freezing cold and I had just shorts and no blankets. I was beaten repeatedly. During interrogations, my head was dunked under water to simulate drowning and electroshocks were sent trough my feet. At one point, I was chained and hung by hands for a long time. During the time I hung in the air, a doctor sometimes checked if I was okay; then I would be hung up again.

The guards accused me of being affiliated with Mohammed Atta. They thought that because we are both from Germany and Muslims, I must have worked with him. This was ridiculous, and without any basis in reality. But the hanging was punishment for not admitting this, and coercion to try to force me to admit it. The pain from this treatment was beyond belief. I know that others died from this kind of treatment.

From Kandahar, I was transferred to Guantánamo. In Guantanamo, the conditions and the treatment were barely fit for animals, and certainly not for human beings. I was deprived of sleep and food for long intervals. I was forced to be in solitary confinement for long periods of time for no reason and subjected to extreme cold and heat. I was subjected to religious and sexual humiliation. I was beaten multiple times. The guards forced me to accept medication that I did not want.

I was interrogated over and over again, but always with the same questions. I told my story over and over, my name over and over, and details about my family over and over. I quickly got the impression that the interrogations were useless and pointless and not interested in the truth. Twice I was visited by German interrogators.

4. The Legal Process

The first time I saw my American lawyer was in October 2004. At first, I did not believe he was a lawyer -- there was no law in Guantanamo and interrogators always lied to us. But, he brought a hand-written note from my mother, and so I came to trust him. He told me there was a legal case that my family brought to get me released. I had no idea about this. From 2002 until my lawyer visit in 2004, in Guantanamo, I had no idea anyone even knew Guantanamo existed or that I was alive.

In September 2004, I had a CSRT proceeding. I did not have a lawyer in this proceeding. At the CSRT, they said I was an enemy combatant because my friend Selcuk Bilgin had committed a suicide bombing. I couldn't believe this -- I did not think Selcuk was crazy. Though we all now know the charge was false, I couldn't prove this to the CSRT -- I was all alone in Guantanamo and without access to any information about the outside world.

There was no legal process at Guantanamo that would allow me really challenge my detention. Going through the CSRT, I know that they were just trying to say that it was okay to detain me; they were not looking for the truth.

5. My Prolonged Imprisonment

I also now know that both the U.S. government and the German government knew I was innocent as early as 2002. My American lawyer has submitted these documents proving this to the committee and I urge you to review them. Even though I was innocent, and even though both governments knew I was innocent, I spent almost five years in American prison camps.

As my story demonstrates, it is not the existence of a security threat that keeps someone in Guantanamo. Because there was no law in Guantanamo, in order to be released, I needed to have a country that would fight for my release. For too long, there was no country that would do that: the German government for years refused to claim me because they considered me a Turkish citizen. The German government even tried to revoke my German residency while I was in Guantanamo. Also, I did not have a strong connection to the Turkish government, since I lived my whole life in Germany. I was not a refugee and could have returned to either of these countires. Instead, I was left behind waiting for politicians to do the right thing for me.

I think that I was eventually released because of the work of my lawyers in the U.S. and in Germany, to prove to the German public that I was innocent and to pressure the new German government to negotiate for my release. If there had been any law in Guantanamo, I would obviously have been released much earlier.

I believe my story, with some variations, is true for many in Guantánamo today. Often, people were released because their countries demanded it. Others remain because their countries do not demand their return, or because they are afraid of being returned.


My imprisonment in Kandahar and Guantanamo was a nightmare. I did nothing wrong and was treated like a monster. There was no law in place or judge to consider my story. How could this happen in the 21st century?

I grew up in Germany learning about the crimes of European countries and how the Americans helped to teach the Germans about the rule of law after World War II. I might expect a something like Guantanamo to be developed by a poor, tyrannical or ignorant country. I never could have imagined this place would be created by the United States of America.

Since my release, I have spoken about my ordeal with many people in different countries – Germany, Belgium, France, UK, Ireland, Sweden. My impression is that they all were deeply disappointed that this is being done by Americans and angry at America for not living up to its own standards. They all supported the US after 9/11, but now they criticize the U.S. for its hypocrisy and for ignoring the law.

I worry about some of the other detainees who are in their seventh year at Guantanamo. No human being can endure this treatment and isolation. I know that what was done to me cannot be undone. But I also know that there are steps that the U.S. should take to and find a solution for those who are still in prison there.

Thank you very much.

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[Participants: Committee members William Delahunt (Chair), Moran, Dana Rohrbacher, Jerry Nadler, Sheila Jackson-Lee, Jeff Flake, Schakowsky; Witnesses Murat Kurnaz (via videoconference), Baher Azmy, Clive Stafford-Smith, Stephen Abraham, Glenn Sulmasy, Mark Denbeaux, Sabin Willett]


DELAHUNT: Thank you very much, Mr. Kurnaz. We're going to -- the members of the committee -- and I should note that we are now joined by a member of the committee, Congresswoman Sheila Jackson Lee of Texas, and my friend and colleague, Congressman Jerry Nadler, who chairs the Constitutional Law Subcommittee of the Judiciary Committee, and another friend from Arizona, the gentleman to my left, Mr. Jeff Flake.

I'm going to go first to Mr. Moran for questions that he might have for Mr. Kurnaz. I'm going to ask our other three witnesses to forbear and have more patience. And also if Mr. Asmi could exchange seats with Mr. Sulmasy in the event that he wishes to assist in responding to questions concerning the legalities of what occurred in the case of Mr. Kurnaz.

Mr. Moran?

MORAN: Thank you very much, Mr. Chairman.  I find it very difficult to understand why the U.S. Government would lie apparently with regard to the fact that Mr. Kurnaz's friend was blown up in a suicide bombing, that apparently this was not true.

But what I find more difficult to comprehend is that the U.S. Government apparently knew as early as September of 2002 in documents that were recently declassified that you were innocent, Mr. Kurnaz, of any connections with terrorism and that the German government told the U.S. that.  In fact there's a September 2002 memorandum from a military official that states that there was no definite link or evidence of the detainee having an association with Al Qaida or making any specific threat against the U.S.

It also states the Germans confirm that this detainee has no connection to an Al Qaida cell in Germany, and then there's a subsequent memorandum the next year from General Mallow to the general counsel of the Department of Defense reporting that the Pentagon is not aware of evidence that Kurnaz is or was a member of Al Qaida.  And again it was corroborated by the German intelligence office and the German Chancellor's Office saying that the USA considers Kurnaz's innocence to be proven.

Now, in light of these conclusions about your innocence, do you have any idea, Mr. Kurnaz, why the Combatant Status Review Tribunal still found you to be an enemy combatant? Can you shed any light on why they would have considered you to be an enemy combatant when they were told definitively and found out themselves that you were, in fact, an innocent detainee?

Can you shed any light on that?  Do you have any speculation? And if you had had any kind of a trial, what would you have told them, Mr. Kurnaz, if there was any semblance of a legitimate judicial hearing in Guantanamo?

KURNAZ: I can't say why they said that I'm an enemy combatant after I got declared that I am innocent.  But maybe they said because they don't want me to challenge it in the court in USA.

MORAN: I didn't fully understand it.  Would you -- did you understand, Mr. Chairman, what was said?  Could you repeat that again, Mr. Kurnaz?  What did they tell you?

KURNAZ: I have really no idea why they said that I am an enemy combatant after I got cleared that I'm innocent.  I have no...

MORAN: Could you describe how you were treated by the U.S. military when you were in Kandahar just very briefly?

KURNAZ: They forced me, because they didn't have anything against me, no other evidence against me, they forced me to sign papers what would make me guilty.  Those papers used to say I know of (inaudible) with Al Qaida, and because I know this, I refused to sign those papers.

MORAN: Were you asked to sign papers claiming that you were in, that there was some justification for holding you at Guantanamo?  When you were released, did the U.S. military get you to sign papers that said something that was not true?

KURNAZ: Yes, it wasn't true what was written in those papers, and because I didn't sign, they always try to make me sign by hanging on chains or by electroshocks. Or they told me if I would not sign, I would never leave Guantanamo and I will spend all my life, all of the rest of my life in Guantanamo.

MORAN: So you had to assert that you were guilty to justify their actions in order to be released, and you were tortured for not signing papers that were untrue. Thank you very much, Mr. Chairman.

DELAHUNT: Now let's go to the Ranking Member, Mr. Rohrabacher.

ROHRABACHER: Thank you very much, Mr. Chairman. Mr. Kurnaz, in your testimony you suggest that you were waterboarded in your captivity.  Is that correct?

KURNAZ: No, it's not waterboarding.  It's called water treatment.

ROHRABACHER: You were...

KURNAZ: There was a bucket.


ROHRABACHER: There was a cloth put over your face, and you were put on a board.

KURNAZ: There was a...

ROHRABACHER: What type of...

KURNAZ: There was a bucket of water, and they stick my head into that water, and at the same time, they punched me into my stomach.

ROHRABACHER: OK, we're just trying to get to the bottom of that because the CIA is claiming that only three people have been waterboarded, and this may be a loophole that they're just suggesting that's not waterboarding. Just wanted to make sure that you were not suggesting it was waterboarding that was your treatment.  And that treatment took place in Guantanamo or in Kandahar?

KURNAZ: It was in Kandahar.

ROHRABACHER: In Guantanamo, they stuck your head in water in Guantanamo.

KURNAZ: It was not in Guantanamo. It was in Kandahar.



ROHRABACHER: All right.  How long were you in Kandahar?

KURNAZ: Like three months.

ROHRABACHER: Three months, all right.  Let us note for the record, Mr. Chairman, that indeed there was an Al Qaida group operating out of Germany at this time and that indeed 9/11 was partially planned, if not substantially planned, and executed by that particular Al Qaida team in Germany.

And it could well be that after 9/11 after we saw those buildings go down and 3,000 of our citizens were slaughtered, that people in our government moved forward so quickly that there could have been mistakes made, and clearly, there were mistakes made. There's no doubt about that, and if this gentleman happens to be one of those, we need to determine that and he needs to be compensated for it if indeed that is the case, which the documents that seem to be presented seem to indicate that.

Let me ask you, Mr. Kurnaz, are you a German citizen or are you a Turkish citizen?

KURNAZ: I'm a Turkish citizen born and raised in Germany.

ROHRABACHER: You're a Turkish citizen.  Were you traveling on a Turkish or a German passport when you went to Pakistan.

KURNAZ: A Turkish passport.

ROHRABACHER: It was a Turkish passport, all right.  I would suggest one thing that this testimony does bring out to me is that along with the suggestions about the Uighurs is that we have received a great deal of criticism from Germany as well as our other European allies about Guantanamo.

And it is beyond me, Mr. Chairman, if they're willing to criticize the United States, why aren't they willing to take these people into their country? If they have no question about it to the point that the United States has made a mistake, they should acting in a moral way and step forward and say we're going to end this injustice right now by bringing these people into our country.

It really undercuts their argument that some way the United States is doing something that's evil by not taking them in or not permitting them to go free and then come to our country.

DELAHUNT: Could the gentleman yield for just a moment.


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 had an opportunity to discuss these issues with the particularity in terms of the Uighurs about our European allies and friends to participate in a very robust way in resolving the predicament 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.


ROHRABACHER: I would suggest that any of our allies that are willing to criticize the United States but are unwilling to take people in themselves, it's beyond hypocrisy.

Now, let me just note one explanation of what may have happened here could well be that after 9/11 in the just rush forward to try to do something that would get some control over this situation of a terrorist network that was capable of conducting such a horrendous attack on us as we saw in 9/11 that we did make bad decisions.

And there were people in the United States government, both in the intelligence and otherwise, that have overstepped their bounds and that many of the people -- some, if not many of the people -- who were taken into custody were innocent.  This man could well have been innocent, and one explanation of why our government hasn't acted to correct the situation and let him free.

It would be, again, perhaps an effort to cover up on the part of our government misconduct of a prisoner, of a prisoner who is custody. Thus, letting that prisoner go would -- at least according to the officials of our government -- may undermine our position.

It is my position that people should always admit their mistakes, and if we have made a mistake and if prisoners were actually mistreated, especially innocent prisoners, that it should be acknowledged.

I will note that -- now, let me ask Mister, and again, is it Kurnaz? Is that how you pronounce this? Mr. Kurnaz, did you see any American elected officials while you were in Guantanamo?  Did any come through that actually you saw?

KURNAZ: I don't know who was a politic or not, but there was many people with civilian clothes and not from the Army.  But I don't really, I can't really say if there was politicals or not.

ROHRABACHER: OK.  Well, let us note again for the record that there's about 107 U.S. members of Congress, many of whom are Democrats, some of whom are liberal Democrats, who visited Guantanamo over these years and have not reconfirmed that it has been our policy to mistreat these people, such as we have heard in our testimony today.

And I would hope that what was done if Mr. Kurnaz is being totally frank with us that that was an aberration that happened shortly after 9/11...

NADLER: Would the gentleman yield for a moment?

ROHRABACHER: Well, actually I'm just about done and I would -- well, I would yield certainly.

NADLER: Thank you.  I just want to observe that I was one of the members who went to Guantanamo.  We spent some time there, but there is no way, there was no way in which we could know whether people were being mistreated or not.

We were shown facilities.  We were shown brief videotapes of detainees being interrogated.  We were shown people in their cells and so forth.  But all we could do was take what we were told at face value.  There's no way that we would know anything about what was going on.

ROHRABACHER: But you were not permitted to question any of the prisoners.

NADLER: No, we were not permitted to talk any of the inmates.

ROHRABACHER: I think that's significant, and I think obviously the policy that doesn't permit elected members of Congress to question people that are being held in prison or captivity by the United States is a bad policy.

So, anyway, I would like to thank the chairman again for this hearing. Again, let us just note that I do believe we are at war with radical Islam, and I'm sorry that their declaration of war against us is very clear.  It only took turning on the television at 9/11 to see that that was a legitimate declaration of war, and during wartime situations, mistakes are made and bad policies are followed.

During the second World War, we bombarded France right before D-Day, killing thousands of French people.  In Guam we destroyed, killed many people and destroyed much property.

It's up to us to admit it when mistakes are made and to compensate people but to recognize the underlying cause of the conflict is not some expansionist or imperialistic attitude by the United States. But, instead, these type of bad things that happen in pursuing a noble goal, which is to prevent radical Islam from dominating huge chunks of this planet.  Thank you very much.

DELAHUNT: I thank the gentleman for yielding, and I look forward to traveling with him and hopefully with Mr. Nadler and hopefully with Congresswoman Sheila Jackson Lee to the facility at Guantanamo.

And I would hope that the lawyers who represent detainees down there will secure permission, consent, agreements, waivers from their clients that would allow us to have one-on-one conversations with your clients.

And I'm sure that I often disagree with Mr. Rohrabacher, but I can assure you that he is an individual that's interested in seeking the truth, and that's what we're about. With that, let me yield to the gentlelady from Texas, Congresswoman Sheila Jackson Lee.

JACKSON LEE: Chairman Delahunt, I might offer to say that this is competing to be one of the most significant and important hearings on the Hill today. I only say that in the backdrop of an apology. I am between hearings in this room with hearings with soldiers in another room speaking to the question of being a United States soldier and being deported and being in deportation because of the broken immigration laws.

So let me thank you for this very significant hearing and apologize for having to go, but let me also say about the Ranking Member as well we appreciate his interest and collaboration on this issue.

Let me make it clear that our Chairman is a former prosecutor. This is no soft-touch individual that would be willing to allow wrong to not be vindicated or to be weak on what should be strong.

But I am outraged and appalled, and I believe our witness is still here.  Mr. Kurnaz, are you still signaled in?  Or have we lost the signal to Mr. Kurnaz?

KURNAZ: I am here.

JACKSON LEE: There he is.

Mr. Kurnaz, thank you so very much.

Let me indicate that I am appalled.  I am outraged, and I think my colleague, Mr. Moran, laid out the groundwork.  Let me try to be pointed in my questions.

First of all, I've been to Guantanamo Bay on several occasions and tried to pierce the veil.  Mr. Nadler is absolutely right.  I wish we could have found you. You were there for five years, which enhances my outrage because I believe it was clear in 2002 that you were innocent of any connections with terrorism, and the German government told the United States that.

So as we went, we were able to be briefed by lawyers dealing with the various tribunals.  We walked through the facilities.  In fact I was there when there were nothing but tent facilities, and it was our delegation that came back and indicated that at least air conditioned structures and other elements should be present.

Let me also lay on the record before I pose a question that it seems as if we have a new definition, Mr. Chairman, and I hope now that we can craft legislation so that we're not, if you will, wedded to the language waterboarding. Now we have new language called water treatment, which may bear on being torture as well.

And so I understand now that rather than get labeled by saying we're doing waterboarding and we can say, meaning those in Guantanamo Bay, can say, "We're not doing waterboarding," but this gentleman just told us about water treatment.

Mr. Kurnaz, could you tell about the water treatment again, please, so I can understand that?

KURNAZ: It was happening in Kandahar, and there was a bucket of water, and they stick my head into the water and in the same time they punched me into my stomach, so I had to inhale all this water.

JACKSON LEE: You had what, sir?

KURNAZ: I had to inhale...

JACKSON LEE: The water?

KURNAZ: ... the water.

JACKSON LEE: And I assume this was a serious punch.  You felt this punch and you were, in essence, incapacitated.

KURNAZ: It was a strong punch, of course.

JACKSON LEE: How many times did they subject you to that treatment, sir?

KURNAZ: The water treatment it was just once.

JACKSON LEE: Did you see or hear of others of those dealing, having the same kind of water treatment?

KURNAZ: I didn't saw, but there was prisoners they told me that the same thing was happened with them.

JACKSON LEE: Other prisoners said that it was happening to them?


JACKSON LEE: Now, we know that you were found innocent.  We know that--or at least that it was acknowledged by the German government as early as 2002. Were you aware or was your lawyer making you aware that you had been found innocent in 2002?  Did you know that you had been, that someone had given the word to the U.S. that you were not a terrorist.

KURNAZ: No, in 2002 I didn't know about it.

JACKSON LEE: No one got word to you.

KURNAZ: And no, no.  Nobody told me that.

JACKSON LEE: Were you continually asking to have a lawyer or to be heard or to be in front of a tribunal to express your innocence?

KURNAZ: I even didn't know that I had lawyers on the outside until I saw first time a lawyer in Guantanamo.

JACKSON LEE: So you were completely isolated, and therefore, no information was coming to you.

KURNAZ: Yes, I had no any information about the out world.

JACKSON LEE: Besides the water treatment, can you share with any other treatment that you received either in Kandahar or in Guantanamo Bay by U.S. military forces?

KURNAZ: They hang me on chains on the ceiling. They pulled me up on the ceiling.  Even my feet, my feet were in the air.  And the same time every day the interrogator came and asked me if I'm going to sign those papers or not.


JACKSON LEE: OK, so they held you upside down?  What did they do to you?

KURNAZ: They hang me on chains, pulled me up on the ceiling.

JACKSON LEE: Pulled him up, held him up on the ceiling by his feet, by his feet upside down.  All right, if -- no?

KURNAZ: No, no.

JACKSON LEE: The feet?

KURNAZ: It was on my hands.  It was on my hands.


KURNAZ: It wasn't upside down, but even my feet was in the air so...

JACKSON LEE: I see.  Hands like over your head like this.

KURNAZ: And, yes, yes.

JACKSON LEE: And feet off the ground and they were trying to get you to sign this document.

KURNAZ: And when the interrogator came, they pulled me back down and asked me if I'm going to sign or not.  If I refused, they just did continue it.

JACKSON LEE: Well, let me conclude just by making a point that you did know Selcuk. Was that a friend of yours, Selcuk?

KURNAZ: Selcuk Bilgin?

JACKSON LEE: Yes, Selcuk Bilgin. Yes. Was that your friend?

KURNAZ: Yes, he was my friend.

JACKSON LEE: And did he commit suicide?

KURNAZ: No, he didn't.

JACKSON LEE: What happened to him?

KURNAZ: He's living still in Germany, and he never did something like that.

JACKSON LEE: OK.  Was there someone who blew themselves up in a suicide bombing? OK so this was -- was there someone?  Was this incorrect? Was he accused of blowing himself up in a suicide bombing?

KURNAZ: It was just a lie.  It wasn't true.

 JACKSON LEE: So and is the person still alive?

KURNAZ: Yes, he's alive and he's still living in Germany.

JACKSON LEE: All right so...

(UNKNOWN): And as his lawyer, let me add he was never charged of committing any crime in Germany.

 JACKSON LEE: And in the United States we...

KURNAZ: And he never, never knew about that allegation.

JACKSON LEE: Wow. In the United States we finger people. They call that you fingered someone. Did his friends say that this that Mr. Kurzine (ph), excuse me, Mr. Kurnaz (sic) was a terrorist? Did his friends say that Mr. Kurnaz (sic) was a terrorist?


KURNAZ: No, never.

JACKSON LEE: All right. Let me just conclude. Thank you, Mr. Kurnaz, for answering my questions.  Chairman, I just want to conclude.

DELAHUNT: Yes, if the gentlelady would yield for a moment.

JACKSON LEE: Yes, I'm happy to yield.

DELAHUNT: It's my understanding and either Mr. Kurnaz or Mr. Asmi can respond if I'm representing accurately the role that your friend played. One of the reasons that was given 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. Asmi?

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

DELAHUNT: A suicide bomber.

ASMI: ... who might have later blown himself up, so who he was friends with...

DELAHUNT: Who was never a suicide bomber.

ASMI: 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.

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 basis -- 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 reflects 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.  And with that, let me yield.

JACKSON LEE: And I'm going to conclude, Mr. Chairman. Thank you very much for that very articulate but really framing the conclusions of which I want to just adhere to.

Let me just in conclusion put on the record that this is a great country. Why? Because there are written constitutional positions that acknowledge in spite of the treatment of women and those of us who are African-American, early stages of the Constitution, the writing of the Constitution, there certainly was a framework of due process and a framework of a trial by one's peers.

I think what we have here is a skewed system where this administration knew what they doing when they labeled individuals enemy combatants and, therefore, extinguished basic rights.

Mr. Chairman, I think you have uncovered, as we have done over the years -- and I look forward to working with my friend and colleague from Judiciary -- a fractured system that now we need to turn right side up and to, again, address the question of enemy combatant and all of its failures.

I think the interesting point is Mr. Kurnaz is in Germany.  He was able to return home, and I think the Germans are not interested in having terrorists come back home or allow them to run freely, and that is what Mr. Kurnaz is because they understand he's innocent.

Chairman, I would hope that we can collectively and collaboratively -- and you are on the Judiciary Committee -- assess, and through this committee, a new structure for this situation, Guantanamo Bay, which many of us have already called for its closing, but to prepare for the future to reorder and possibly to eliminate -- to eliminate -- by legislation the term enemy combatant and what it means if it does not allow a due process that would have allowed Mr. Kurnaz in 2002 or 2003 to have been able to be heard.  And we would have been able to remedy his situation if he was heard.

With that, Mr. Chairman, this is an appalling case.  I call for our remedy, and I thank you for it.

DELAHUNT: I thank the gentlelady, and I now call on the chair of the Constitutional Subcommittee of the Judiciary Committee Mr. Nadler for questions that he might have.

NADLER: I thank the chairman, and I thank the chairman for holding this very important hearing. And I thank the witness, Mr. Kurnaz, for being willing to testify to us after he has ample reason, unfortunately, to refuse indignantly to have anything to do with the United States since the United States has treated him abominably and, I would think, totally against our own laws.

And I hope that people in the administration will eventually be held accountable at law for what has been done here.

Let me summarize if I can. I hope we're still in communication with Mr. -- OK, let me summarize if I can.  The CSRT announced two reasons for his enemy combatant designation: first that his friend Mr. Bilgin committed a suicide bombing two years after Mr. Kurnaz was in incarceration even though Mr. Bilgin, obviously, didn't commit a suicide bombing since he's alive and well today.

And, secondly, Mr. Kurnaz had enrolled to take some lessons from a Muslim missionary group called the Jamaat al-Tag Tablighi if I'm pronouncing it correctly, which allegedly has had several members who have sometime engaged in hostility to the United States.

Are those the two reasons why the CSRT said that Mr. Kurnaz was an enemy combatant.

ASMI: Those are the two reasons.  Just to refine the second one, it was merely that he associated with this group and specifically "received food and lodging from this group," which as you point out...

NADLER: Mr. Kurnaz or Mr. Asmi, do you know how many members this group has?

ASMI: Many million members.

NADLER: It's about 40 million, isn't it?

ASMI: That's right.

NADLER: So, in other words, by the standards of the CSRT -- and of the 40 million, how many have been convicted of any crimes of terrorism?

ASMI: I'm not aware of any particular number, but the United States has placed them on some lists because out of those 40 million, you could find, you could trace a handful who may have individually made connections...

NADLER: So a handful of people who are associated with essentially a religious group, missionary group, a group that characterizes itself as peaceful, and there's 40 million people in it and a handful who may not have been so peaceful.  Therefore, anybody associated with that group in any way, this is evidence that they're terrorists.

ASMI: That's right, Mr. Nadler, and that's consistent with the administration's view.  A mere association...

NADLER: A mere association not with a terrorist group but with a huge group that may have a couple of people associated with other terrorists shows that you're a terrorist.

ASMI: That's right.

NADLER: Now, in no American court would this be held as evidence.

ASMI: No, it wouldn't, and in fact in an American court in her decision in January 2005, Judge Green (ph) before her decision was indefinitely stayed, noticed the attenuated nature of these charges and said in American court this would not satisfy due process.

NADLER: Obviously.

ASMI: Unlawful detention but that never got to proceed that decision.

NADLER: Now, why was it indefinitely stayed?

ASMI: Well, the government appealed the decision...

NADLER: So it's on appeal?

ASMI: It has been stayed, and Congress passed first the Detainee Treatment Act, then the Military Commissions Act, and it's this decision under a different name that is on appear [CSHRA: on appel?] in the Supreme Court.

NADLER: That's the Gharani case.


ASMI: That's right.

NADLER: Now, we have evidence here.  We are told here that the United States government knew definitively that Mr. Kurnaz was innocent. A September 30th memorandum from military officials states his innocence. A May 23rd memorandum from General Mallow (ph) to the general counsel of the Department of Defense reports that CITF is not aware of evidence that Kurnaz is a terrorist.  And a September 2002 declassified memo from a German intelligence officer to the Chancellor's office states, "USA considers Kurnaz's innocence to be proven."

So his CSRT hearing occurs in 2004. The only evidence he's a terrorist is nonsense, that he is associated with someone who committed suicide bombing who is alive and well. Mr. Kurnaz or Mr. Asmi, do you know if the CSRT was made aware of this evidence, of this exculpatory evidence?

ASMI: I'm not certain, Your Honor. If they were made aware of it, they did not make any effort to consider it in any way.  It was simply ignored on the record as we know it.

NADLER: Did you know of that evidence at the time?  Were you representing him?

ASMI: I was his lawyer, but I was not allowed to participate in the CSRT.

NADLER: You're not allowed to participate.  A lawyer's not allowed to participate in the CSRT.

ASMI: That's right.

NADLER: Was Mr. Kurnaz aware of this evidence?

ASMI: No, he was not made aware of this evidence.  He was not allowed...

NADLER: He was not aware of it.

ASMI: Yes.

NADLER: So he could not bring it to the attention of the CSRT.

ASMI: That's exactly right.

NADLER: And you don't know whether they were aware of it.

ASMI: No, I don't.

NADLER: Now, under the law, was it anybody's duty in the United States government to bring this evidence, this evidence that said that the United States had concluded he was totally innocent, to the attention of the CSRT?

ASMI: Under a properly constructed version of the law...

NADLER: No, I didn't ask that.

ASMI: Under the...

NADLER: Under the law that they were operating under, under -- obviously, under any properly civilized law, this would have had to be brought to the attention of a court.  Now, I won't dignify the CSRT with the term of court, but my question is under the law as it was operating, was it anybody's duty to bring to the attention of this so-called court the definitive evidence that he was, in fact, innocent?

ASMI: There was no absolute duty, no.

NADLER: There was no duty.  Do we know -- and we don't know whether the CSRT knew about this at the time.

ASMI: I have no information one way or another if they were aware of it.  We know that they didn't consider it.

NADLER: Mr. Chairman, I would hope that we will subpoena the members of the CSRT at that time and all people and people who knew about this, certainly, General Mallow and whoever else knew about this, and ask if they bothered.  And if not, why not[,] to make available what they knew was definitive evidence of this person's innocence to the so-called court that was trying him.

And I would ask the members of the CSRT whether they knew about it and if they made any attempt to find out about it, so I hope that we would subpoena these people.

I want to say -- let me just ask one other thing.  Now, Judge Green (ph) pointed out in 2005, I think it was, that in no properly organized court would this have been, would he not have been found innocent because there was no read evidence of guilt whatsoever. The pieces of evidence were nonsense, and we had the exculpatory information that proves his innocence, which wasn't there, but he spent five years in Guantanamo despite having committed no wrong.

Mr. Kurnaz, has anybody from the United States government apologized to you?

KURNAZ: No, nobody apologized for anything.

NADLER: Has anybody expressed that -- when you were released, they asked you to sign documents admitting guilt?

KURNAZ: Yes, shortly before they brought me to the plane, they brought me in a room and brought me those same papers and told me if I'm going to sign, I would leave that place. And if not, I would stay for the rest of my life over there.

NADLER: OK.  Can you, do you know who made that threat to you?

KURNAZ: It was officers, high ranking up. I don't know them well, but they came with cameras for making filmings during these times but...

NADLER: Because I will certainly tell you that someone who tells a prisoner that if you sign a document you will be released and if you don't, you'll be held in jail for life is committing, I believe, a crime.  They are certainly committing a crime under our law.

And certainly, the people who tortured you, as you described it, by hanging you from the ceiling, by putting your head in the water and punching you while you had to inhale, they were committing crimes under American law, and they ought to be held accountable.

And the people who authorized that conduct ought to be held accountable, and I certainly hope that in the next few years we will hold these people criminally accountable. There's not much else to say. Let me on behalf of the United States express to you, sir, my regret and apologies. The United States should never engage in conduct like this.

And let me say also in comment with what Mr. Rohrabacher said before. The United States was viciously and savagely attacked. The attack occurred in my district. I knew people who were killed then. That is not an excuse for behavior that was not simply mistakes.

Some of the behavior that is described here was savage, highly illegal, wrong and not simply mistakes. Mistakes happen.  Nobody's perfect.  But unlawful conduct, savage treatment, holding people in jail knowing they're innocent, not allowing the so-called court to see the evidence of their innocence, these aren't mistakes. These are acts unworthy of a nation of laws, and they should not have happened, and they must not be permitted to happen.

I will say one other thing. Some of us -- I've introduced legislation. Mr. Delahunt, I believe, is a co-sponsor somewhere. Others are.  We call it the Restore the Constitution Act.  Among other things, it restores habeas corpus among other things, which would mean that you have to justify to a real court, not a kangaroo court like the CSRT, why someone is being deprived of liberty.

It would specifically repeal some the provisions of the Military Commissions Act and the Detainee Treatment Act that seek to make legal these obviously illegal and uncivilized acts.  And I hope that there will arrive a day in the not-too-distant future when this Congress will pass this kind of legislation and when official of the current -- and when the officials who did these things will be held to account in a proper American court.

DELAHUNT: I thank the gentleman, and I'm going to yield to my colleague, our colleague from Arizona, Mr. Flake.

FLAKE: I thank the chairman for yielding and thank him for holding this hearing.  This, in combination with the hearing that was held on rendition, has brought to light some very troubling things.

I would add to what the gentleman from New York said about this being savage. It also seems to be systematic. This is not a one-time occurrence that could be written off as a mistake, and so I find it very troubling and want to join my colleagues here in offering an apology as well.

Let me ask Mr. Kurnaz when the -- you said that you had no idea that the German government had been working for your release.  How long do you know now that the German government was working with our government to secure your release?

(UNKNOWN): Excuse me. My client didn't really understand the question. What's the question? How long did negotiations between Germany and the U.S. took place for the release?

FLAKE: Yes.  Was that a period of months?  Was that over a couple of years? How long did that take?

KURNAZ: Yes, it started in January 2006 with a visit of Chancellor Merkel at President Bush in Washington, and it ended in August 24 in 2006.

FLAKE: Was that -- those were obviously the high level negotiations. Were lower level negotiations going on for a period before that?

KURNAZ: After the top level in January, then the negations took place on all different levels up to August 2006.

FLAKE: OK, thank you.  I just thought it was important what the gentleman from New York, the line of questioning with regard to just prior to your release that there was an attempt made again to exact some kind of confession.

Had this happened on a number of occasions?  Was this typical of the interrogation where they tried at the end to get you to confess? How many times would you say that this occurred similar to the last time?


KURNAZ: I don't know how many times it happened, but it was very often, and I don't know.  I really don't know how many times, but it was very often during those five years.  It started in Kandahar and even from my release they just tried every time again.

FLAKE: You mentioned the bucket of water that you were, your head was submerged in. Was that a one-time occurrence or a number of times?

KURNAZ: The water treatment happened just once.

FLAKE: Right and you mentioned being suspended upside down and tied by your arms, I guess. Was that a one-time occurrence or many times?

KURNAZ: It was once for four or five days.

FLAKE: Over a period of time for five days you were, your arms were shackled.

KURNAZ: Yes, I hang on, I just hang on chains for five days. Just when the doctor came to check if I am still okay or if I can survive or not, then they pulled me back down.  And if they said okay, they pulled me back up.

FLAKE: All right. I thank the chairman.

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

ASMI: That's right.  You must assume...

DELAHUNT: That's true.

ASMI: 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.

DELAHUNT: So there's no way to challenge the facts as reported by the Combatant Status Review Panel.

ASMI: 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...

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

ASMI: It's fixed in fact and cannot be contradicted by any objective facts to the contrary, so in this case...

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 reflect due process? Colonel Abraham?

ABRAHAM: Sir, if I may, as a member of the CSRT panel, Panel 23, that found -- I'm sorry.  As a member of Tribunal Panel 23 that found that 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 a few of the CSRTs.

DELAHUNT: Colonel Abraham, I'm going to ask you to exercise some restraint. I really want to get to you because you had, 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, please proceed.

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

We would look at you as a former federal prosecutor and the other lawyers on the panel or from a law-of-war perspective, which would be presumptively the Article V Tribunals, which still are embodied in the Geneva Conventions, which are similar.

And there is no appellate right from an Article V procedure for best presumption of prisoner of war in combat, so I think you have this distinction. Again, this begs the need for something because this is a unique entity and a unique conflict.

DELAHUNT: I take it, Professor, you're not an advocate necessarily for CSRT processes.

SULMASY: Correct.  I think that with the confusion with the CSRT...

DELAHUNT: But we now have 275 detainees.

SULMASY: Yes, sir.

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

ASMI: No. Under the enemy combatant definition used as part of the CSRT, mere support is enough.  There need not be knowledge.  There need not be materiality, and there need not be intent.  And you don't have to believe me.  The government conceded as much in part of this litigation when they conceded that hypothetical example involving a little, old lady from Switzerland.

DELAHUNT: The little, old lady from Switzerland.  Tell us, please, about the little, old lady from Switzerland.

ASMI: 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 Qaida.  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 (ph) asks.  The government says yes.

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

ASMI: Absolutely, and the answer to that question had to be yes at 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.

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

DELAHUNT: Well, I want to thank you, Mr. Asmi.  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 have had, please know that the American people are a good people, a moral people and 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...

MORAN: Mr. Chairman, could I ask one question?  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, an unrecorded proceeding?

DELAHUNT: Mr. Asmi, if you or Mr. Kurnaz could respond to Congressman Moran's question if you're aware?

KURNAZ: I am sure there are many filmings about those things, but I don't know if they were destroyed after or not.  But there was in the interrogation rooms there was cameras, but I don't know if those cameras did work or not, if there was -- if they took filmings about it or not.  But there was cameras in the room.

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, Mr. Chairman.

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 outstanding attorney, Mr. Asmi. Thank you and Mr. (inaudible).  Vielen Dank, ja?

(UNKNOWN): Ja, vielen dank.

DELAHUNT: And let's continue with the rest of our panel.  Mr. Stafford Smith?

SMITH: Mr. Chairman -- is that working?  OK.

First, let me say thank you very much for the invitation to this hearing and also add an American (inaudible) with a slightly strange British accent. Let me say that you folk 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 Mohammed Hussein Abdullah. He's a teacher, and he's 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 settled in Pakistan in the early '90s, and he was recognized as a UNHDR refugee in 1993.  And for the next several years, the Abdullah family lived quietly in Pakistan, minding their own business. Mr. Abdullah taught orphans at a Red Crescent school in 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's one of the many people who were sold to the United States for bounty.

Now, look, we all recognize -- everybody now recognizes that Mr. Abdullah is innocent. United States military has recognized it.  It's been conceded by everybody, and yes, he's still in Guantanamo Bay. And it's been recognized for months and months, indeed turning into years now.

And the question is why and the question is why we're 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're 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. Abdullah 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 those last years with his grandchildren and his family.

Second person I want to talk about is Mohammed el-Gharani, and there was mention 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 then [CSHRA: don't] have cigarettes to do it to themselves in Guantanamo Bay.

He is, indeed, one of the prisoners who was interviewed by the FBI, and you mentioned the report that came out today.  I sat in the 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's now 21. He's still there. He's spent over six years in US custody without any trial. He's originally from Medina in Saudi Arabia although he's a Chad national, and he's not recognized as a Saudi Arabian national.

And one of the great tragedies of the racism in Saudi Arabia is if you're 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'd only just got there when he was snatched up, sold for a bounty and, indeed, ended up in Guantanamo Bay.  And 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 positions when they used them.

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. 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 remains to this day is that in 1998 he was a member of the London cell of Al Qaida. Well, if that's true, he was 11 years old, and he was somehow transported there by the Starship Enterprise because he'd never been out of Saudi Arabia.

And I'm glad to say actually in one of his recent interrogations the guy that 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 Qaida.

This child has made repeated suicide attempts and has tried to slash his wrists.  And, you know, he still is a kid, and we should be treating him as a child rather than as a -- the way he's been treated in Guantanamo Bay.  He is in Camp 5 right now.

I've spent 25 years representing people on Death Row in the Deep South, and I've been to all the prisons where people are held 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'd 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 gives them 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're talking about by yourselves. Be my guests. All I want you to do is have that opportunity.

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's a British resident.  He's 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 US and by the British in Pakistan. The British said to the United States that he was nobody, a janitor.  And indeed, he was a janitor from Kensington.

Nevertheless, the US came to the conclusion that he knew more than he was saying, so they vended [CSHRA: 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 for 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 US personnel, who took the pictures of his genitals when he was taken back into US custody on January the 21st, 2004.  We've done a lot of investigation on this, so 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's some things I can't talk to you about here because they're 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 that someone would subpoena me 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 for 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, Congressmen, to say the Europeans should step up to the plate.

I'm glad to say that largely through bullying through my office, we've got them to take four people so far, and we're trying to help out a little more on that. But the British government...

ROHRABACHER: If I could just, just one because you made reference, just to say I think it's time for our European friends to put up or shut up. And it's very easy for them to put up.  If 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 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 quite yakking as if you're morally superior to us.

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 litigation where they wanted to say, "Well, we didn't make a mistake after all, so 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's two sides to 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 speak as a schizophrenic here since I've got a British passport, too.

But we sued the British government just two weeks ago because they've 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're 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 context I think Binyam Mohamed is certainly a strong example of why we need to be closing Guantanamo Bay.  But let me conclude -- sorry.

MORAN: Mr. Chair, if I might just say I can confirm this. His sister is an American citizen and a constituent of mine, lives in Northern Virginia. We can verify everything that Mr. Stafford Smith has said.

Now, it would be questioned, but I know this to be...


DELAHUNT: Realize I don't want to cut anybody short, but we do have two other witnesses that we want to hear from, and then we're going to request that you stay while we go to 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, many Americans will have heard this from people who know what they're 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've only got, you're only going 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.

Mr. Denbeaux?

DENBEAUX: Thank you very much, Mr. Chairman. I am honored to be here in the sense that I'm proud to have the American Congress looking into this. I'm sad to be here because of the circumstances that drive it.

I'm not here to tell you about other examples of events that are so poignant and so painful as the examples that you've just heard, not because there aren't many more but because there are, in fact, many more.

I'm actually here to tell you what the actual record is based only on an evaluation of the government's own documents.  What I have done with some students of mine from Seton Hall Law School is to review the government record in every case we assume to be true, everything the government ever said.

We've not disputed a single proposition, and we've done a series of reports. I'd like to add at no time has the Defense Department ever challenged the accuracy of our reports, especially and it's significant that the chairman of the Senate Armed Services Committee, Senator Levin, directed them if they had any objections or challenges or disagreements with our report. On April 26th of last year he gave the Defense Department 30 days to respond.

You can well understand a year has gone by. There has been deafening silence.

But what I really want to tell you is the picture that's painted here is not consistent with the idea that these are a few aberrations. The really poignant problem we have to face is the systemic nature of the problem.

And I'd simply like to begin by pointing out that if you review the evidence the government collected and presented as its justification for keeping each of these people in Guantanamo, there are several facts that are beyond dispute. I think you've mentioned some of them.

Only 8 percent of the people in Guantanamo are alleged to have been fighters for anybody...


DENBEAUX: Eight percent. Fifty-five percent of those people in Guantanamo are never accused of committing a hostile act of any sort against anyone.

Sixty percent of the people in Guantanamo are there because of their association, mostly with the Taliban. Sixty percent of the people in Guantanamo are there because they're associated with the Taliban.

And I'd like to point out one of my students came to me and said, "Well, that was the government of Afghanistan.  It's like being associated with your local policeman, your local postman in the United States."

And my students went through the reports and the data on who was there, and I still remember one young man coming to me and saying, "I don't get it.  Where are the bad guys?  Where's Mr. Big?"

And one of the references he made was to one of the people whose CSRT charges can be read very briefly.  The entire charge against him, which was found sufficient to incarcerate him indefinitely -- I believe he's still there. He's associated with the Taliban, and the sole evidence of that according to the government is that he was conscripted into the Taliban.

Two [CSHRA: True?], he engaged in hostilities against the United States. That makes this one of the 45 percent of the really bad people. We gave the government credit because they said he counted as one of those who they alleged to commit hostile acts.

Here are the hostile acts.

MORAN: Is this gentleman an Afghan that you're talking about?

ROHRABACHER: We believe so.

MORAN: You believe so?

DENBEAUX: We believe so.  We only take the government documents as they're given. They don't always identify.

ROHRABACHER: I just understand the people in Guantanamo are not basically Afghans, that they're...


ROHRABACHER: ... in Afghanistan from other countries.

DENBEAUX: Many have been returned to Afghanistan, but there are those in still there who are from Afghanistan. This person, the evidence against him is that he was a cook's assistant for Taliban forces and that he fled during the Northern Alliance and surrendered to the Northern Alliance.

This person is being held in Guantanamo, as the best we can tell now, even though the only charge against him is he was conscripted into the Taliban. He served as a cook, and when the Northern Alliance attacked, he surrendered.

When we listen to the incredibly painful stories of the Uighurs or Mr. Kurnaz or the examples that Mr. Stafford Smith has just given, nobody's speaking for this person. This person, in fact, is simply one of the 517 people. This is the evidence.

And when Seton Hall students made their survey, we concluded that he is associated with the Taliban because they said he was.  We gave the government credit. The government said he engaged in hostilities, so we put him on the side of the ledger that said he engaged in hostilities.

But most American people don't believe being associated with the governing force by being conscripted into it would necessarily hold you responsible for everything. And most Americans don't think serving as an assistant cook and surrendering is a hostile act.

DELAHUNT: Professor, can I ask you to focus for awhile on the issue of recidivism?


DELAHUNT: When we were here last week, there was a representation made through the Ranking Member that 30 of those who had released had returned to the battlefield, if you will.

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 accommodate everybody.

DENBEAUX: Yes. 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 and 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 the challenge of pointing out the errors in that report at any time that he requests it, and it's included...

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

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 has released. It's puzzling to me that they would release people and not bother to keep track.

The press release says they base 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 depends to a large extent on, in fact, press reports.

Now, I would 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 has 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 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 circumstance.

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

So right off the bat we start with 30 people, 8 of whom no one would claim had returned to the battlefield.  Some of the others -- 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 we've 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 medical, 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've 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's 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 bomb in Iraq.

Now, I'd like to make one thing clear. That man was released in 2005, not as a 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.

DELAHUNT: Why was he released?

DENBEAUX: You know, my central point I was thinking of making but I'm not clever enough to do it is 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 and committed hostile acts and ever been in Tora Bora. This person that's released was one of those four. He's in the four...

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

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're held in Guantanamo unless the government decides to let them go.

And the reasons they let them go seem to confess to error of their intelligence. One of my students said to me, "How could you have a press release bragging about making mistakes in 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.

DELAHUNT: We shall return and, Colonel, please bear with us, and we look forward to seeing you maybe in 45 minutes.


DELAHUNT: Will the hardy band of witnesses please assemble before the dais? Well certainly, again, let me apologize for the intermittent nature of this hearing. It's customary in Congress to have these interruptions.  I had hoped today, because we did not anticipate that we would have votes as early as we did, we swore in a new member from Mississippi.  And that accounted for the earlier hour. And we had hoped to have concluded.

But let me, without any further ado, ask Colonel Abraham to proceed.

ABRAHAM: Thank you, Chairman Delahunt, and to the House Oversight Committee for permitting me to speak today.

I begin my remarks with a request, that you remember the following dates, September 16 and September 25, and the numbers 33 and 35. On April 13, 1945, Supreme Court Justice Jackson, speaking on the matter of war crimes trials, observed that farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people. He continued: The world yields no respect to courts that are merely organized to convict.  He would later serve as chief prosecutor at the Nuremburg War Crimes Trials.

Sixty years later, in Hamdi v. Rumsfeld, Supreme Court Justice O'Connor wrote that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. That same day the court, in Rasul v. Bush, would extend the fundamental rights expressed in Hamdi beyond accidental boundaries of citizenship.

Others have spoken before this committee on the abuses suffered by detainees at Guantanamo. I will not speak to those matters. Their voices do not need my inadequate words to express the indignities wrought by our hands.  Rather, I will address that which I have observed, understood through the prism of experiences spanning nearly three decades, as an officer in the United States Army Intelligence Corps for more than 26 years and as a lawyer for more than fourteen.

I will address the Combatant Status Review Tribunals based on my personal involvement in nearly every aspect of their conduct. But more importantly, I will discuss the response by members of the international community personally observed by me to Guantanamo, though I will leave to you to assess the consequences for American national security and foreign policy objectives.

I was assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, OARDEC, from September 2004 to March 2005. Prior to that time, I had served, after 9/11, as lead counter-terrorism analyst with the Pacific Command. It was during my tenure at OARDEC that nearly all of the detainee tribunals were performed. I served as an interagency liaison.  I also served as a tribunal member and had the opportunity to observe and participate in all aspects of the tribunal process.

The executive branch's detainee review process was designed not to ascertain the truth, but to legitimize detentions while appearing to satisfy the mandates in Rasul and Hamdi decided only eight days earlier. The tribunal process was designed not to fail, as much as to succeed in a way alien to the purposes declared in Rasul and Hamdi. Lacking essential information and subjected to undue command influence, the tribunals did little more than confirm prior determinations. That CSRT process was proof of the executive power to detain anyone.

But the question posed today is not of the nature of Guantanamo, but rather the world's response to our use of Guantanamo as an instrument of our policies. I draw my conclusions from a recent experience.

On February 28 of this year, I appeared before a joint hearing of the Committee on Civil Liberties and the Subcommittee on Human Rights of the European Parliament. A principal subject of the hearing was repatriation of former detainees. However, the discourse between members of Parliament, including representatives of some of our greatest allies, grew rancorous, revolving around the question of which countries had participated in the United States' campaign of extraordinary rendition, and which countries together with the United States ultimately bore responsibility for the stateless condition of scores of former detainees.

I explained that our system of justice was founded on principles shared by many of the countries represented by that body, principles invoked not only by our charters of freedom, but that resonated two centuries later in the Declaration of Human Rights of the United Nations. Regrettably, the unmistakable message conveyed by a number of Parliamentary members were that those were merely words, as dry as the parchment on which they were penned, abandoned for the sake of political or military expedience.

Ultimately, I drew conclusions from the experience.  As to Guantanamo, the opinions emerged that Guantanamo was a place in which fundamental human rights did not apply, that judicial safeguards did not reach, and that lack of transparency permitted intelligence-gathering activities to displace balanced national and international policies.

The second opinion may be explained by reference to remarks easily recognized.  We as a people refused assent to laws, the most wholesome and necessary for the public good. We as a people affected to render the military independent of and superior to the civil power. We as a people deprived men, in many cases, of the benefit of trial by jury.  And ultimately, we as a people transported men beyond seas to be tried for pretended offences.

Ultimately, we as a people denied the self-evident truths that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

This subcommittee heard testimony not too long ago -- not this morning, but a number of weeks ago. And I will respond merely to one statement that I read that stuck in my mind.  Guantanamo is neither a necessity nor inevitable part of the grant of authorization by Congress on September 11, 2001. Guantanamo, very simply, is a consequence of our disposition to suffer, while evils are sufferable, than to right ourselves by abolishing the forms to which we are accustomed.

Simply put, Guantanamo was created. And no one had the resolve to eliminate it. As a result, more than 700 were imprisoned for years, and more than 270 languish even today.

Guantanamo is, at its core, evidence of how speedily we tired of our constitutional rights, and how greatly we clamored for the illusion of security that we so quickly, so easily, and so completely surrendered one for the other. Moreover, Guantanamo is evidence of how willingly we cause to be forcibly divested essential human dignities of those over whom we presumed to exercise dominion.

DELAHUNT: Colonel Abraham, your statement reminds me of the observation attributed to Benjamin Franklin, that those who would give up essential liberty to purchase some temporary safety deserve neither liberty nor safety. I think you're echoing, centuries later, an observation that is so important to who we are and what we are as a people, particularly in terms of our rhetoric; and now to see this disparity between our rhetoric and our deeds.  And I dare say that it's time to read some history.


DELAHUNT: Maybe we ought to go back and read a little more Ben Franklin and George Washington and Thomas Jefferson, and of course John Quincy Adams.

ABRAHAM: Of course.

DELAHUNT: But proceed.

ABRAHAM: Mr. Chairman, what I experienced when I was at OARDEC a number of years ago came back to me...

DELAHUNT: Let me know, too, the presence of a friend and colleague who is very focused on this issue. I know that this morning she had an opportunity, I think, to host Mr. Stafford Smith. This is an issue, as I said earlier to our witness from Bremen, Germany, that we will pursue, that we are a people of laws. And as you mentioned, Mr. Sulmasy, it's important that we do it in a way that's not accusatory, but that's thorough, that's exhaustive, and that reflects well on our sense of fairness, our sense of balance, and reclaiming that moral authority that I think we all feel has been eroded and jeopardized, because of this mistake.

Again, my apologies, Colonel.

ABRAHAM: Sir, no apologies ever necessary.

This morning, on the way to this hearing, I stopped a bit early. I got off the metro at Arlington Cemetery and walked from there in a rather indirect line to the Supreme Court, nearing to a very small degree the steps that I took each day that I worked at OARDEC. And along the way, I saw a number of monuments. But one monument that I did not see today is one neither built with the bricks nor mortar with which the others are formed. And yet, though it is nowhere to be seen within thousands of miles of this city, it is by one word more recognizable than every institution that we have built over the last 200 years. And that word, predictably, is Guantanamo.

In the beginning, I invoked the words of a great champion of justice. But it is not to those ghosts of Nuremberg that I allude. Rather, the experiment called Guantanamo may be compared to laws adopted in 1935, ten years before the first war crimes trial would commence. Those laws spoke to the protection of a people, and of a state, and of the divestment of laws of those not entitled by right of birth to the same.

For just a moment if I may, I'm reminded, as I was today, and as I was on December 5 of last year, during Supreme Court argument, of the statement: Never before in history have these people been given more rights. The words that rang in my ears then, uttered by the solicitor general, and that I've heard today also as I've heard on a number of other occasions, have run not only in my ears, but in the ears of my family members. Ultimately, those laws, the Nuremberg Laws, purported to legitimize acts of inhumanity with no parallel in the history of mankind.

How can I speak of such matters when I was not a witness to them? I asked you in the beginning to remember two dates and two numbers. The latter were the numbers of the transport trains, 33 and 35, that on September 16 and September 25 of 1942 sent members of my family to their deaths at Auschwitz. Just as the world silently witnessed the events of 1935, the entire world bears witness, not only to the facts of what Guantanamo is, but, as importantly, the manner in which we have responded.

At the opening session of the Nuremberg Trials, Justice Jackson exclaimed: We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. Mr. Chairman, what is the history by which history will judge us?

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 are contributing to ensuring that, on this issue, there is no longer silence.  It's the end of silence.

Because you're 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. And we can't let that happen.

I think you probably heard today implicit in the questions that various members of the panel posed, that we're 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 have tarnished that city on a hill, that shining city on hill, we're going to buff it up again.

We're 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 again women or any minority group, and that a 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 it was President Bush. It might have been Vice President Cheney, about they hate us because of our values. No. I do not believe that for a minute. I think that they're disappointed, because there's a belief that we have not been true to our values. Well, we're complying with our values today, and in the future, and in the past.

Representative Schakowsky, if you want to make any kind of a statement or ask any kind of questions before I proceed, you're more than welcome.

SCHAKOWSKY: I want to thank you, Mr. Chairman, for allowing me to sit in today. This is an issue of great concern to me.  I visited Guantanamo Bay a couple of times. The first time I went, it was after the OSCE Parliamentary Council had made a resolution condemning Guantanamo Bay and certain members of the Parliamentary Council from the United States went to Guantanamo -- that was their mission, to go there and see what was happening.

And I met with Major General Geoff Miller, who I asked a very simple question. How do you know that all of these detainees are guilty of something? And how will you determine that?  And he assured me that they were all bad guys. And that the way one could be sure of that is because the process for screening them in Afghanistan was really fool-proof, that it was such a wonderful process.

So I'm just wondering maybe you've been through all that already today. And I know I'm coming in at the last minute.  Probably you're anxious to leave.  But I'm just wondering if any of you want to comment on how these individuals got there in the first place and your speculation on how it might be that, with such certainty, the person in charge of Guantanamo would say, you know, trust me, they're all bad guys?

ABRAHAM: If I may?


ABRAHAM: I had the opportunity to see most of the classified records. And nearly all of the unclassified records during the time that I was at OARDEC, as they would be processed -- the packet, the files of information in Washington, either to be used in Guantanamo, or to be used where tribunals were held in absentia -- that is where the detainee was not present, because either he had determined not to participate, or there were no witnesses.  And in no instance, in fact, were there ever witnesses from any source outside of Guantanamo.

In almost none of the instances that I observed was there information that would have been sufficient, as of the time of the transfer of an individual to Guantanamo, to justify his indefinite detention.


ABRAHAM: In all of the instances that I saw, I saw none where there was sufficient evidence of which the government was possessed at the time of the detention to justify efforts not to seek further evidence and to support the record of the CSRT on the basis of that information alone. In fact, I know of no instance where somebody came to a CSRT with a ready-made package, that is with so much information available on them, that it was not necessary to do any research.

Quite the contrary was the case in nearly every instance. That is, research teams would be asked to pull information on the detainees. In many instances, the detainee information was extremely limited. It might include the circumstances of their detention, which often was nothing more than a statement from the detaining authority as to how they came to be in that entity's possession and ultimately transferred to the United States.

SCHAKOWSKY: Would you know if someone was paid a bounty in order to turn somebody in?  Was that indicated at all in the information you had?

ABRAHAM: In terms of the information that would be received by the CSRT -- because, after all, we're talking about how an adjudicative body deals with the evidence. In most of the instances, the CSRTs did not know how the person came to be in American custody. There would be generalized statements about the fact that they were turned over by a particular group, that they were being held by Pakistani authorities, but very little more than that.

DELAHUNT: If the gentle lady would yield for a moment, I think that we should take note of the book by Pakistani President Musharraf, who indicated that the Pakistan government, out of fear of being -- I think his words were "the victim of a military assault on Pakistan," turned over some 369 Arabs and earned, for the government of Pakistan, millions of dollars for bounty.

Let me go to Mr. Smith.

SMITH: May I just say that, in terms of how we made so many mistakes, there's a sort of inevitability about it. The guy who gave me this (inaudible) did nine years on death row in Louisiana. And he ended up, and other people we've exonerated, in an open legal system. It's quite clear how we made these mistakes.

And it tends to be that you have an informant who's acting on some self-interest whether to be for money or for other benefit. You then get into a legal system where there may be coercion of the defendant or whatever. And then you end up having a trial process that just doesn't expose the errors that have gone before.

When you look at Guantanamo, of course all of these things happen in a closed legal system. And we've talked. And I've got these wonderful bounty fliers, where you got $5,000 minimum for turning someone in that you didn't like anyhow. You say they were in Tora Bora. Then along come, instead of your stereotypical police officer from Louisiana threatening one of the prisoners -- and I certainly don't mean to say that police officers do that all the time.

But in our instance here, they do. They apply enhanced interrogation techniques. And having got you to a bounty, I then apply enhanced interrogation techniques, doesn't take long before you say you were in Tora Bora.

And these are not sociopaths doing it. I think it's very important to recognize that, in the Miliband experiments in the 1970s, 85 percent of just us normal people did what we were told when we cranked up the electricity to the point where we would have killed the person that we were questioning.  And it's not sociopaths doing it. It's young men and women, it's soldiers, who are just told to do this stuff.

DELAHUNT: I think, if 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.  It was called the Justice for All or the Innocence Protection Act.  But it was predicated on the huge number of exonerations in various cases, but specifically capital cases.

SCHAKOWSKY: None more than in Illinois.

DELAHUNT: Right.  And there were 13, I think, on death row 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.

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 the U.S. forces only pick up 5 percent of these people, they're being held based on evidence that's provided by, whether it's tribal chiefs, warlords, Pakistani officials.  And there's 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's 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 I 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 reversed. The question was who should be released?

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

DELAHUNT: I want to explore something.  Something you said provoked a question in my mind that I'd like to address 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 first-hand 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.  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 have enhanced the credibility of the processes.


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, both as to their distinctiveness, and then way that they complemented one another. Ultimately, that of which you 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 a question about what I did every day that I was there.

I was in Crystal City. I was here in Washington, D.C. for most of the time. The research teams were there. The command leadership element of OARDEC was here. And when you ask the question 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 have 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 the one of the worst of the worst. He is one of the people who was 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 illusions 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 are 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 have been responsible for collecting the information in the first instance. And you begin to wonder within a few days of your assignment, 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, D.C." 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 was 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.  And 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 had 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 recorder came back to us a short time later and said, "I can't give you any more answers. There's no more evidence." The report was written indicating that that detainee, Al-Gazawi, 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 representative 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. Gazawi was and should remain designated as an unlawful enemy combatant.  But more significantly than the fact of the reversal of that tribunal decision, was the fact that in the prior months, 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. Gazawi 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.

DELAHUNT: What do we do now?

WILLETT: 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 his CSRT in 2004. So when General Miller told you this has all been done, and we know they're all bad guys, well, we 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.

SULMASY: Congresswomen, just two points on that. I think Professor Denbeaux hit on an excellent point about this as well in terms of in war, there's a sense of if we were going to free any of these people at a period of time, especially when you were visiting during General Miller's tenure, that there was a likelihood they were going back to the battlefield.

We can debate whether that's true or not.  But just getting the mindset of the military, as is alluded to, there's certainly noble folks that are trying to do their work there at Guantanamo, the military. And I think we can take safety in knowing that the number was around 1,000, went down to 500 and went down to 270 now is what we're looking at.  Certainly, that's not as expeditious as we may have hoped.

SCHAKOWSKY: Now it's what?

SULMASY: Two hundred and seventy -- that that number is a result of some of these people here and some of the members here of Congress. But certainly, that number has been going down.  So there is an action being taken by the armed forces to respond to some of these concerns.

And the other item I think the chairman brought up...

SCHAKOWSKY: How many years later now are we talking now?

SULMASY: I'm sorry.

SCHAKOWSKY: Some of these people have been detained, they're in their seventh year. Right? Some of these individuals are in their seventh year of detention, however.

SULMASY: That's correct. And some of them -- again, as far as we know from our perspective, or from the government perspective, would be that those folks are engaging in activities that are likely to cause -- or engage in terrorist activities. There is some semblance.  We have to defer at some point that there are at least some people there that are likely to engage in terrorist activities at some point.

I know you might disagree on the numbers.  We can go back and forth.

SCHAKOWSKY: I don't disagree. Without any process, however, without any genuine process, we have no way of knowing that. And I'll tell you what. We do put ourselves at risk. You start rounding up people who are innocent and put them through years of incarceration in a cage. I saw those cages.

And there might be some danger once you release them, because they're going to be really mad. And their families are going to be really mad. And the consequences, I think, of not having due process, a legitimate process that's recognized internationally as a legitimate process is a very dangerous thing for our country. I would agree with that.

SULMASY: I agree, Congresswoman.  But I do think we have to recognize as well, that we would have these same issues in a conventional war. In a conventional war, we keep POWs to the end of hostilities. And we have to find some way to find some sort of a medium, which is what I alluded to in my testimony -- some sort of a hybrid method to accomplish these tasks.

We can't simply put them into our civilian courts.  And we can't keep them in military commissions. There has to be some third way to look at this.  And I think that's incumbent on all of us -- or you all as policy makers -- to be looking at those.

SCHAKOWSKY: Does everybody agree with that, that we have to have a hybrid kind of process.

DENBEAUX: No, certainly not. I certainly don't. I don't understand even -- it always seems to me when, no matter what happens in life, whatever number of choices you have in front of you, we all want one more than that. You know, if you have a choice between eating dinner at one restaurant or another, and one's closer and one's better, somebody wants a third place. If your child wants to go to college, you like this college, but you don't like where it's located.

I think people are always trying to find more options than there are. I don't see why we need a hybrid. Everybody keeps talking as if we have to have this knotty problem figuring out how to solve the situation. I mean, our legal system can handle it. There are knotty problems.

I don't know why people have to have to something. They're not prisoners of war. They can't be treated criminally.  We have to come up with some new characterization.  It'll take us five years to figure it out. There will be litigation. There will be hassling.  And I think the time has run out for finding secret tricks to solve this problem.

And I'd like to add something.  I heard everybody on the panel distressed about Mr. Kurnaz's situation.  But you know, I think there are things that we could do for Mr. Kurnaz.  And one would be to find out who it was who evaluated him and decided he was an enemy combatant.

I think it would be totally appropriate for this committee, and I think it would be helpful to America, Kurnaz and everyone else, to say how is it that all of these innocent people were found to be enemy combatants? The general convinced they were all bad? There was a process. We know everybody loses that process somehow, as Lieutenant Colonel Abraham has pointed out.

I think it would be right for us to learn how those things happened. This isn't an independent tribunal. And I would really like to get to the bottom of it. I think there's lots of information that would come out that would be useful in history to find out how this happened to make sure it never happened again.  And that's one of my concerns here with...

DELAHUNT: If I could interrupt my colleague for a minute.  You know, I understand there's debate about whether a third way or hybrid is a better way or resolves an issue. I think what -- and I'm not trying to put that off. But we haven't had a single trial yet before a military tribunal. It's how we got here is what is most disturbing.

As Congresswoman Schakowsky talks, it's seven years. It is seven years. I can remember when I first heard that the British detained alleged IRA terrorists for some 14 or 15 years. Maybe it's because of my heritage. But I was just stunned and shocked and appalled that that could happen in a democracy such as the United Kingdom. And the British did learn from that experience, because people do get angry.

And part of this hearing is clearly predicated on what are the consequences to the United States in terms of our national security because of Guantanamo? They are profound.

As the ranking member can corroborate, we've had a series of hearings and polling data.  And it isn't just the Islamic world, it's our traditional allies. And I'm not suggesting that we're in a popularity contest.  It's not that.

It's about our self-interest.  It's about do we want to deal with these issues alone, because that's the attitude that some might have in this country. But I can tell you, it is not an attitude that I think results in a positive resolution of these very difficult issues. And it impacts us commercially. It impacts us in terms of all of our foreign policy objectives.

I yield back to the gentlelady.

SCHAKOWSKY: One last question, and I truly appreciate this. Is any of you aware of any prisoner detainee who has died as a result of his incarceration, his treatment, in detention by the United States?

SMITH: May I respond to that? Yes, certainly. I mean, there are eight documented cases. And indeed, some of my clients in Guantanamo witnessed -- not in Guantanamo, the ones that I know of were in Afghanistan in Bagram Air Force Base for the most part.  But there were.

And I think it is important to expose the truth on that. I mean, who knows? I've heard my clients' version of events, who said they saw it.  But on the other hand, I think we should have a proper open evaluation of what really happened there.

SCHAKOWSKY: Has anybody been held accountable for that?

SMITH: There have been some processes. Indeed, one of the guys I represented was going to be a witness for the defendant, who is an American soldier. But in the end, that didn't go forward. But there hasn't been a thorough evaluation of any of those cases, let alone all of them.

ABRAHAM: If I may, Madam Congresswoman, I can't speak to anybody who has died at Guantanamo yet. And I think it important without giving too little regard to those who have died under circumstances that may not yet be explained. I think it's important to deal with one individual who is the subject of our tribunal. He, a man much about the same age as me, also with a daughter; although the rest of the circumstances of our lives are totally different, is dying in Guantanamo right now. He has been diagnosed as having Hepatitis. He was told by...

SCHAKOWSKY: What's his name?  I think...

ABRAHAM: Al-Gazawi.

SCHAKOWSKY: Does Candace Gorman represent...

ABRAHAM: Candace Gorman.

SCHAKOWSKY: I've tried to help there, yes.

ABRAHAM: Yes, yes, ma'am. And he had at one point been told that he had AIDS. Then he was told he didn't have AIDS.  But the fact is, it is the consensus of a large number of people who have had the opportunity to observe him, that unless he is treated, he will die.

That is of particular concern to me for entirely selfish reasons. I do not represent any detainee.  I am not a member of any law firm that represents any detainees. I have no interest in letting terrorists go. But quite frankly, by my involvement in OARDEC for six months, I, no matter what anybody else has to say about it, put him there.

I put him there, because I was a member of an organization that allowed the process that was put in place to continue unabated, not only during the six months that I was there, but years later -- a process that allowed, by simple justification of its own existence, to declare people to be reasonably, rationally and legally held without any evidence whatsoever.

Madam Congresswoman, as far as I'm concerned, if he dies without the truth of the nature of the claims against him being properly reviewed, that death is on my hands.

DELAHUNT: If I may, let me just ask all of you, I think I hear numbers like 50 or 60 detainees whom everyone agrees ought not to be there. 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.

WILLETT: Mr. Chairman, if I can begin.  And it gives me a chance to respond...

DELAHUNT: Thank you, Congresswoman.

WILLETT: ... 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 Uyghurs, 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 in 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.

DELAHUNT: 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?

SMITH: Oh, certainly.  I represent a man, called Omar DeGuys (ph) [CSHRA: Deghays] who is Libyan, who's now home in Britain, actually. But thankfully, the British did take a non-British national. But we were pulling together the information about all the Libyans.

And according to his statement, and it was consistent with various other people, 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, they went and picked them up from Tripoli, brought them to Guantanamo Bay -- it was an American plane -- whereupon, some choice were used. The Libyan delegation said to Mr. DeGuys (ph) [CSHRA: Deghays], according to him, that we can nothing to do 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. DeGuys (ph) [CSHRA: Deghays] was an opponent of the Qaddafi regime. Well, I'll tell you right here, I'm an opponent of the Qaddafi regime too. I think he's a despot.

But because of that sharing of information with the Qaddafi regime, they had forgiven evidence to the Qaddafi regime about why these Libyans in Guantanamo Bay should be persecuted if they were sent back to Libya. So we had compounded the problem. So fortunately, Mr. DeGuys (ph) [CSHRA: Deghays] is back in Britain. But there's another 10, I believe, Libyans who are 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've got to do is solve that problem now by finding them a place to go.

ABRAHAM: But, Mr. Chairman, you asked the question how do we solve the problem?  One of the concerns is that there have been a number of individuals, both within this body and outside, who have 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, 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 7 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 I when we had the car bombing in the garage. Those individuals were successfully brought to justice. Their trials concluded without risk of exposure of intelligence information outside of security channels.

DENBEAUX: 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, we're 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 counties that have a record of systemic torture, although 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 then deputy attorney general, we were told that to send him to Canada -- to Canada -- would have been prejudicial to the United States.  I'm waiting for some explanation as to why we could not send him to our neighbors to the north. I'm unaware of many terrorist groups operating north of the border.

SULMASY: 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 the military commission. If they're acquitted by the military commission under the MCA, then so be it.

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.

SULMASY: (Inaudible)

DELAHUNT: That is an indictment of the system.

SULMASY: I think in that regard, sir...

DELAHUNT: And the 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.

SULMASY: Certainly, the first one with the legal advisor being removed, does not mean he's removed permanently. But I think, of all of our alternatives right now, it would seem best to try them, to use the military commissions. Again, you know that I advocate for a third way, which obviously others might disagree with.

But I think, two points on that, if I could, Mr. Chairman, is when someone says we have two existing ways to do these now, we have the 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, a[s] policy makers, to look at other ways to do this, because it's clearly not working. 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 this, with the legal advisor, Mr. Chairman, the pressure to secure the convictions, which is really an inherent problem in the whole military justice process, even without courts martial is the -- unlawful command influence is a flaw within the military system.  And it's something that we all should be concerned about and why we need to perhaps have civilians oversee the system.  I'm not sure we'll ever get away from that.

But historically, from what Colonel Davis alluded to, during the Quirin case, President Roosevelt actually, in the Quirin case, directed Attorney General Biddle and the jaggedy 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.

WILLETT: Mr. Chairman.


WILLETT: It's very important not to get confused and off the track on these military commissions.  Military commission 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.  But there are 15...

DELAHUNT: That's a very important point, and well noted.

WILLETT: So we've got 255 people who are never going to be -- it 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?

DELAHUNT: And as we know, you know, 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; which again goes back to what we should have done early on, rather than finding ourselves in this quandary.

Let me yield to the gentleman from California.

ROHRABACHER: Thank you very much, Mr. Chairman.  So we're talking about 255 human beings who are down there in Guantanamo, who are finding themselves in the Twilight Zone or some bizarre situation that they're losing their minds. It's a crazy situation there. Of those 255, is there anyone here who would give me a guesstimate as to how many are people who are r[e]ally Al Qaida terrorists, and how many of them are just swept up in an effort after 9/11 that was somewhat too broad a grabbing of people?  What are we talking about here?

SMITH: I would love to respond to that. I was a wonderful, extremely conservative Republican judge in Frank Williamson's case, who was the guy on death row, who gave Frank Williamson a retrial and got a lot of criticism for it. And at the end of his opinion he said that he'd had a conversation with a friend of his who had been critical of him, the judge, because perhaps he was letting go a murdere[r]. And the judge replied, and it's in the opinion. He said: You know, we won't know that until we've had a trial.  And he went on to say thank goodness that's the American way.

Well, it turned out that this very conservative Republican judge was absolutely right. Frank Williamson was exonerated off their throne (ph) [CSHRA: death row?]. The guy who really did it was later identified. So I think the only possible answer to your question is we won't know until we give them American due process.  But they're not all (inaudible).

ROHRABACHER: Or if we end up knowing afterwards, when the American due process is done. We've already let 500 people go. And some of them have gone back.  And you may be very afraid, Colonel, that you might be responsible for the loss of that life. And I certainly identify with that. You take your job very seriously and realize that what you have done may end up causing the loss of that life. All military people are put in those type of situations. That's why they're there.

But one thing we do know is one of the people that was let out just recently went back and participated in the killing of six people, murdered them, blowing them up in Baghdad as part of a terrorist operation.  Now, we do know that.  And perhaps after the trial, we still won't know until after a certain number of people have blown up other innocent people.

And the question now is, those 255, we know some of them are terrorists. Everybody seems here to be afraid to try to come up with some suggestion as to what proportion. But we know some of them, at least, are terrorists. Some of the 500 we've already released have gone back and committed acts of terrorism. So we have to assume that it isn't just an overreaching on the part of our government in some of these cases. That does not prevent us, as humanitarians and as people who believe in the truth, from trying to determine as best we can which ones are certainly not deserving of any of the treatment they got.

My partner here was a prosecutor.  And I'm a former journalist. And I will tell you that I know very well that, in the United States, with as committed as we are to human rights and to justice, et cetera, once the prosecutors have got you targeted, they'll keep coming at you until they get you on something. Do we not know that? Everybody knows that.  And that's in this country.

And so it certainly does not stretch the imagination that they picked up the poor Turkish fellow from Germany, when he was on a bus and just coming back from visiting religious shrines or whatever, and without any evidence just decided, ah, he's going to be our man, because somebody said something who was an unreliable witness. Then they just kept him until they get something on him, until they get him to sign a piece of paper. That is not beyond anybody's imagination here.  But our job...

DELAHUNT: Would my friend yield for just a minute?

ROHRABACHER: Let me finish this one point.


ROHRABACHER: But our job is to try to find out, and be honest there's a balance here, of yes, if that's what's happening to this guy, like the other people targeted by prosecutors here, and there's an injustice being done, how do we address that without letting go these other people who are going to kill other innocent people?

And I can assure you, if we end up letting 255 of these people go, there are going to be other dead people who are innocent people, who will be killed because of terrorist activity by some of these people. Does anyone dispute that?  Do you think that we could let them all go, and there won't be any other terrorist activities committed by these 255?

DELAHUNT: Would the gentleman yield for a moment?

ROHRABACHER: Yes, certainly.

DELAHUNT: I think that Mr. Smith gave the right answer. It's a question, however, of -- and I'll let Professor Denbeaux respond to your 30 back-to-the-battlefield detainees.


DELAHUNT: But I think it's very important that what has failed here is the process. What has failed is the process -- seven years. And no one is suggesting just let people go. Just have a process that is constructed in a way that protects our national security and respects human rights. That's what we're about as a people.

ROHRABACHER: But Mr. Chairman, reclaiming my time, we've already let 500 people go. This is not indicative that we have been intransigent here. The fact that we have 500 that have been in custody who have now been released, some of whom went back and committed terrorist acts does indicate that we are not being totally intransigent.

Now, whether or not some of these people, like the Uyghurs that you're talking about -- now, there may well be, which I've been told, a Uyghur village, because we do know that Afghanistan does stretch way out there.  There's a little stretch of Afghanistan goes all the way over to China. Now, it's conceivable there's a Uyghur village there.

But we also know that, during this time period, there were many people who came from other countries, whether it was China or elsewhere, who were recruited by bin Laden into what was basically a radical Islamic terrorist foreign legion. That's what Al Qaida was. And they were trained, at that time, to lie and to claim that they -- make all sorts of claims. They were trained this way. I don't think that's in dispute. You're welcome to dispute it if you'd like. But I believe that's pretty well-documented.

And knowing that, we know that we face this dilemma. And I'm willing to certainly readily admit, when I was a kid, one of the -- and I've told the story once before. But there was a guy in my church. And he was my dad's best friend. And he was a former Marine, like my father was. And he told me that when he fought in Guam, as a Marine.

And they went out one night. They were assigned one night to go out. And there were a group of Japanese. This is after basically the island had been already captured. But they knew there were groups of Japanese. They were supposed to capture this group of Japanese. And sure enough, they came upon them at night. And when the Japanese, they pounced upon them, they were around this fire. There were about six of the Japanese soldiers. And the Japanese actually got up and were surrendering. And my father's friend said, there were several of us there, and we just opened up on them and killed all of them.

Now, I don't know. I'll just have to say he kept that in his heart all these years. Were the U.S. Marines bunch of real -- do we look back on World War II in shame of the U.S. Marines?  Do we look back and have all these apologies about what our U.S. Marines did in World War II?

Yes, I'm saying if we've got problems, we need to correct them. We need to go for the truth.  We need to admit our Marines did that. But let's not give in to this tendency of our allies.

That's why I say, for our allies to put up or shut up, because all they're doing is being critical and nitpicking half the time. They aren't putting their own people in harm's way, except perhaps the British.  And they're nitpicking us about a situation like this, which is a hard situation to deal with, the same way it was hard for that young Marine in Guam after he'd seen his own people murdered or killed during the war, to capture those Japanese. And maybe somebody -- not maybe -- somebody went way over the line by killing them.

Anyway, I know that's a diatribe.

DELAHUNT: If you'll yield for a moment.

ROHRABACHER: (inaudible).

DELAHUNT: 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 Uyghurs. 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 them and not to allow the 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.

ROHRABACHER: Well, if they're innocent people, you're absolutely right. And we need to make that determination.  I will have to...

DELAHUNT: Let's make that determination.

ROHRABACHER: Well, let me state for the record again, you go to a federal prison right now. And as much as you can tell, I'm very aware that prosecutors target innocent people and go after them, or go after somebody and get them once they've been targeted. Even if the prosecutor finds they're innocent, they'll go on with the prosecution. We know that. We've seen it dozens of times.

OK. 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're going to find almost every one of the prisoners will assure you that he is innocent of the charges against him -- almost every one of the prisoners. There's no guilty people in jail.  And I suspect...

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


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

ROHRABACHER: Well, we know this. That there have been some people at least...

DELAHUNT: I'm just trying to...

ROHRABACHER: OK. I know. But we...

ROHRABACHER: I'm trying to get you to exercise some restraint in some of your remarks about prosecutors.

ROHRABACHER: All right. We have some people that we know have been cleared for release, like the Uyghurs. OK?  And there is no excuse that we keep people who've been cleared for release incarceration.

DELAHUNT: Thank you.

ROHRABACHER: 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've been cleared for release by the very countries who now aren't accepting them.

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...

ROHRABACHER: I'm going to say...

DELAHUNT: ... settle and parole here.

ROHRABACHER: I'm going to say something really heretical.

DELAHUNT: Heretical.

ROHRABACHER: Heretical right now. And that is I would hope that, seeing that we're 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 that 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...

DELAHUNT: I would ask the gentleman to refrain from...


DELAHUNT: That profanity.

ROHRABACHER: Yes.  Anyway, the bottom line is I think our European allies can pick up that responsibility, especially considering they're nitpicking us about it. Or they're 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 hands.

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

ROHRABACHER: Actually, he wanted to...

DELAHUNT: 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, since 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.

SMITH: Mr. Rohrabacher, can I just make...

ROHRABACHER: I can stay for a couple more minutes.  But I've got to go.  So go right ahead.

SMITH: No, I know you couldn't get the chairman -- you know, you guys didn't quite agree on America. But why don't we agree on Italy at least. I would love to go with you to Italy and explain to the new head of state in Italy why they need to take the Tunisians, many of whom lived in Italy, and many of whom were rendered through Italian air space with the Italians' knowledge, who have been quite hypocritical about this. I'm totally on your side on that.

And if we can go there together and...

ROHRABACHER: Well, for example, the fellow we had that the chairman was talking about, I think he was picked up in a rendition program. By the way, rendition started under President Clinton, not under President Bush. And he was picked up with the full cooperation, I believe if my memory serves me right, of the Italian government. And almost all of these cases of rendition, when you dig deeply into them, you will find our intelligence services were working in total cooperation with those Europeans.

And now, we just have to assume all of the burden of that responsibility. Well, I would hope that they'd pick up a little bit more of that. But I know that you're colleague there has been waiting to pounce on me.  And please feel free to disagree.  Yes.

DENBEAUX: I'm sorry, you're talking to me?


DENBEAUX: I apologize.

ROHRABACHER: No, no. I'm the one who's apologizing. I talked a little too long. And I know you've got a couple points you wanted to make.

DENBEAUX: Well, I'm in great danger of talking even longer than you. So I'll have to show some restraint as well. I'd like to go to the point about recidivism that you raised, because I think it's incredibly important in two ways. First of all, you keep saying that the other countries have to pick up their share. And at the same time, you keep saying many of these people, when released, will go back and kill in the battlefield.

You will say, you know for instance, that we have to make some judgment on that point. And I think we have to recognize that it's truly against our national interest to have people falsely claiming the extent of the behavior of people after they're released.

And I'm going to tell you that I made a study of every government official's statement about the released people returning to the battlefield. I found 45 quotes. They're from the Justice Department. They're from DOD. They're from the legislative branch, senators, congressmen, everybody else. None of the numbers agree. They go up, they go down. There's 12 people; no, it's 20 people. Two weeks later, they're down saying it's really eight people.

I don't think anybody in the government, including DOD, knows the answer to that question.  So first of all, I think we should start, if we're asking people to help us find a way to release people, by making sure we know exactly what dangers there are. You've asked us to say how dangerous some of these people may be. I'm suggesting our government has to stop saying more people are dangerous than they are.

Now, you mentioned, I think, this DOD press release, which was issued in July.

ROHRABACHER: That's what I had to work from. Right.

DENBEAUX: I understand that.  I've spent a year and a half trying to get this information, because it's being mentioned constantly. And no one could do it. And my students found this July press release from last year. And the first thing they looked at, they said well, this is crazy. First of all, it doesn't say returned to the battlefield. It actually talks about the fact they've returned to the fight.


DENBEAUX: And the 30 number that you pick is 30 people who've returned to the fight. And I don't think American people consider that, if the Uyghurs are in a refugee camp in Albania, and they give a new[s] story complaining about Guantanamo, that you'd fairly want to call them returning to the fight. Well, that drops the number from 30 to 25. And every time a public official uses the number 30, they are seriously damaging our ability to get people to cooperate.  And the same thing is true about the Tipton Three.

ROHRABACHER: Just for the point that you just made, the Defense Department specifically states on the list that they gave us this definition does not include -- meaning going back to the fight -- does not include listing a detainee as having returned to the fight if they have spoken critically of the government's detention policy.  That's part of...

DENBEAUX: I don't know what you...

ROHRABACHER: I don't know.  Maybe they're lying there too, for all I know.

DENBEAUX: I'm not saying that. But I've never believed press releases quite as much as the drafters thought. But let me go back for a moment, because you may not have been here when I was speaking on this point before. So I'd like to go slowly again.


DENBEAUX: I'm working from the Department of Defense press release of July of 2007. And that was following a long period of time in which I kept saying who are the people? And there are a couple things about this July 2007 press release. First of all, at no time do they identify an internal security number for anybody. And, of course, I would like to think that if our government is actually saying this person, after being released, has returned to the fight and been killed or captured, they would know that person's name, and they'd know the number.

I would implore this committee to have the Defense Department identify the ISN number of every person.  And I don't believe they're going to do that, because of the definitional problem.  If they're going to claim...

ROHRABACHER: Well, we have a document here where all those numbers are identified -- right here.

DENBEAUX: Could I see that, sir?

ROHRABACHER: Why don't you go give it to him?  Yes, we'll make sure you get it in your hand.  But every one of those numbers are there.  The names and the numbers are right there.

DENBEAUX: Well, may I ask, has that been published?


(UNKNOWN): It was just given to us. I don't know...

ROHRABACHER: It was just -- we don't know if it's been published or not. But it was just given to us by the Department of Defense.

DENBEAUX: I've been looking for that for a very long time. And I've been asking various Congress people and senators for it.  And they said they couldn't get it from the government.

ROHRABACHER: Well, let me...

DENBEAUX: Perhaps I've been lucky enough to have provoked the production.

ROHRABACHER: We will hand this to you at the end of this. And you can let us know what that is and how that affects what you were just saying.

DENBEAUX: OK.  Moving on beyond that one, let me make the point...

ROHRABACHER: By the way, I am not saying that everything that somebody has in a press release that I buy and take as gospel truth. And I understand also don't believe that I just discount everything that some of you folks are saying either, because I don't.  But...

DENBEAUX: I would hope not, because we've gone to a lot of trouble to figure this out. And let me say this, the 30 number from the press release I have with or without ISN numbers, actually only refers to seven people having been released from Guantanamo and returned to the battlefield. So if you look at the 30, it's down to seven.

And my students took the names of each person, and they have the list of every person who's ever been detained in Guantanamo. And of those seven, two of the seven who were supposedly released and returned to the fight are on no lists as having ever been in Guantanamo. Two others have different names and sometimes double names, and it's possible they were.

But when it's all said and done, so far under the press release I operated under, there were three people possibly who had returned to the fight, and two of whom were neither captured nor killed on a battlefield. And there's an assumption that they returned to a fight. But I don't know that. But our policy has been to accept the truth of the government's data, where it's unequivocal. Where it' equivocal, we have to act appropriately.

But the number 30 is a gross injustice to America, to the people who released them, and to our ability to find a way to return people to their homes.

ROHRABACHER: I find out this is a nonclassified document. So we'll be very happy to give that to you. It has the names of 12 people that the Defense Department are claiming specifically, with all the numbers and the details.

DENBEAUX: So it's 12? Is that the number?

ROHRABACHER: Twelve on this list.  We haven't see any other of the...

DENBEAUX: One of my problems with the 30 number is sometimes it is 12.

ROHRABACHER: They may have -- let me note that, even though there are problems with whether it's 12 or 30 or 15...

DENBEAUX: Or three.

ROHRABACHER: Or three, I would suggest that many of the people, or most of the people, who ended up in Guantanamo, were non-Afghans who were picked up at the time after 9/11 and at a time of great turmoil. It does seem to me that it would indicate that we are not talking about people who just -- you just have to give the benefit of the doubt that they were on a vacation trip or something into Afghanistan at that time. That wouldn't be where a normal person would go.

Now, whether they are all guilty of terrorism, you know, were they part of the Al Qaida legion?  Well, that remains to be seen. But a large number of these people were in Afghanistan at a very questionable time. And anyone that was, quote, "recruited into the Taliban" -- and I know a lot about what was going on there -- these were not people who just were voluntarily there and just had some sort of religious epiphany that they should join the Taliban. Usually it's because they were part of a committed anti-Western Islamic sect that was exemplified by Al Qaida and its relationship to the Taliban.

DENBEAUX: I understand that. I would ask you one favor.  In light of Mr. Kurnaz's position and experience, I would ask that you and no other government officials give a number of the people who have left Guantanamo and been killed and capture in the battlefield, unless they know the actual number.  It seems to me we do ourselves a huge disservice by making up numbers that create horror stories. And if I were a European country, and America wasn't willing to take them themselves and keep saying there's 30, there's 12, there's 16, there's three, there's eight, I think we are tying our hands.

ROHRABACHER: It's very hard to verify this. The German army had lots of files. And everybody wore a uniform.  And it was very easy to determine who was an SS officer, and who was a Germany army officer. And that's the enemy we were fighting then. The enemy we're fighting today, they don't wear uniforms. They have enormous sums of money coming to them, I might add, from some of our Arab friends who are using the oil money that we give them.  And there's all sorts of...

DENBEAUX: Congressman...

ROHRABACHER: ... complications there.  And with the...

SCHAKOWSKY: We need order, and...

ROHRABACHER: And I'll be done in one second.  And just to say that this is a different situation.  It's not as definable as it was. And to be fair about it, I know I try to give my country the benefit of the doubt. I try to give my government and my military the benefit of the doubt. But I'm fully aware that they make mistakes, and that some people in those bodies do not incorporate in their soul the same standards of humanity that I would have.

So anyway, with that said, thank you very much for your testimony.  I think it's been a good discussion.

Thank you, Madame Chairman.

SCHAKOWSKY: Thank you.  The gentleman's time has expired.


SCHAKOWSKY: We'll never say that.  We know that there's a great deal of passion around this issue.  And I promise not to keep the witnesses who have been very gracious with their time and extensive amount of time. But thank you for your indulgence.  And I thank Chairman Delahunt for, again, more than a thoughtful hearing, if you will.

I always am overwhelmed about running out and getting the next action item or the action item that we should really take from this hearing. And I start first of all, and I'm going to try to be like I'm cross-examining; because, in fact, I have an engagement myself that is shortly ending.  But I think this hearing is crucial for us to get the framework or lay the framework, if not for this administration, for the forthcoming administration.

I frankly believe there has to be a solution to Guantanamo Bay. Many of us are on legislative initiatives that are demanding closing Guantanamo Bay.  As I make that point, let me, for the record, be very clear.

There are no non-patriots in this room.  I would include the witnesses as well, and those in the audience, and those of us who should -- our words of opposition to what is going on in Guantanamo Bay -- be described as wanting to promote recidivism, to promote the terrorists that may by chance have been released or come into the system, by any chance to denigrate the entire United States military; because we recognize that, as Mr. Abraham is here, there are those who want to see a system that works.

Now, as a member of Congress, having gone to Guantanamo Bay at least three times, if my recollection serves me well, we did get to see play out -- let me say see, by way of instruction -- this CRST. And the thought was that they were giving us the suggestion that they were making it all right.  Obviously, that is not the case.

So let me post, sort of, a real bullet point -- and don't take it literally-- but focused question that I would appreciate an abbreviated answer. And I start with Mr. Willett. Let me just go across and give Mr. Sulmasy a chance as well. Sulmasy, thank you.

The term enemy combatant, are you comfortable with it? And should it be changed?  And I really do need yes or no, should be changed kind of answer.

SULMASY: Should be changed.  Illegal belligerent would be the appropriate...

SCHAKOWSKY: Yes.  You don't have...

SULMASY: Illegal belligerent would be the better term in accordance with...


SULMASY: Belligerent.

SCHAKOWSKY: Belligerent.

SULMASY: In accordance with the laws of war.


SCHAKOWSKY: Would you give them Fifth Amendment due process rights?


SCHAKOWSKY: All right. Mr. Willett.

WILLETT: The question?  I'm sorry.  Do you want the first one or the second one?

SCHAKOWSKY: I only had one.  What is your position on enemy combatant?  And should it be changed?

WILLETT: The term has to be abolished.  It has no tether in military law. Illegal or unlawful belligerent is the right way to look at it, yes.

SCHAKOWSKY: And abolish -- would you give the individuals postured as something due process rights?

WILLETT: Yes.  I would give them habeas. That's the simple answer.

SCHAKOWSKY: Habeas. Thank you. Mr. Smith.

SMITH: Yes, it's certainly...

SCHAKOWSKY: Is your mike on. I can't hear you.

SMITH: I'm sorry.  It certainly should be abolished. We should just comply with the Geneva Conventions.  We signed them years ago. If indeed someone has committed a war crime, they get the same tribunal, at least, that we give our own soldiers. That's the law. And that's fair enough.

SCHAKOWSKY: Thank you. Mr. -- if I pronounce it -- Denbeaux.

DENBEAUX: Denbeaux, yes.

SCHAKOWSKY: Denbeaux.  Professor Denbeaux, yes.

DENBEAUX: Yes.  I...

SCHAKOWSKY: The answer to question of should we abolish enemy combatant? And should however the person be postured, be given habeas and due process rights?

DENBEAUX: Yes. I think they should be given habeas and due process rights. And the term enemy combatant is just dust in the air that confuses the issue.

SCHAKOWSKY: That's why I wanted to get the right terminology. Lieutenant Colonel -- because they have you as mister -- Lieutenant Colonel who's retired, your position.

ABRAHAM: My position is that enemy combatant has never made sense as a term. And as to due process, forgive me if I take just a few seconds. We can no more give them due process than we have the right or the power to take due process away. Either it exists for everyone, or it doesn't exist. I would expect due process in any way in which I am treated.  And I can deny no one on this Earth that same right.

SCHAKOWSKY: And let me just follow up with you then, Lieutenant Colonel, because you have had some direct experience with Guantanamo Bay, and as well the tribunals. The representation, as I might imagine, of those who may view this hearing, listen to the intensity of the questioning, is that here is an array of individuals who want to jeopardize the integrity and security of the United States of America.

Let me pose this question to you. We've heard Mr. Sulmasy probably wants a hybrid. But I think his view is very important, because maybe we can have a meeting of the minds on what the terminology would be, and what rights the individuals would have.

I think we've made a very gross mistake by suggesting to the world that we're willing to subordinate all of what we have argued for, that this country represents. And I don't think anyone would be mistaken if they didn't think that this whole era, post-9/11, has impacted the standing of America in the world, but really the integrity of America as it relates to the concepts that people have -- the one place you can go for rights that would be preserved for those who have a different opinion.

Obviously, these individuals are characterized as dangerous to the life and liberty of the United States.  But we have been known to be the kind of country that can accept the restraining and retaining of individuals along with the underpinnings of our Constitution.

My question to you, would we be less safe if we got rid of the enemy combatant and had a process, of which you have seemingly adhered to, that included habeas, that included due process? What would be the protection that could be put in place that would suggest that we could be as safe?

ABRAHAM: Madame Chairwoman...

SCHAKOWSKY: And is your mike on?

ABRAHAM: Yes.  We would be safer. I was at the Supreme Court building a couple hours ago and heard the end of a tape. And in it was a discussion of what is the Supreme Court and what it means. And the importance was in the comment, when the Supreme Court stops enforcing the understandings of our Constitution, and we as a people stop listening, that will be the end of our system of justice.

I think that there is absolutely no risk to our national security and our security as a nation if we very clearly, unequivocably state, as to the 270-plus that are at Guantanamo, if there is no claim against you, the doors are open. If there is a claim against you, we will tell you what it is.  We will tell you what it is in a transparent system.  It is when we act in a way inconsistent with that notion, that we bring, not only greater disrespect upon ourselves as a nation, but greater risk to our citizens every day that we exist in this international community.

SCHAKOWSKY: I hope that the summarizations and the statements that the witnesses collectively have made are really studied.  And if someone is viewing this tape, this hearing, reading this transcript, that they will understand the depth of the statement that you've made.

From the very beginning, many of us were both opposed and, I would argue, confused, though it is a terminology that you don't want to attribute to members of Congress, where the term enemy combatant ever even came from.  What was the legitimacy of the definition?  And I hope that Professor Denbeaux is researching the origins of it. I'll get to you on that.  And I am going past my time.

But let me do this.  Let me get to Mr. Smith, Stafford Smith, on this young Gharani, who was 14 years old when he was sold by the Pakistani military as a terrorist to the United States military, and then later taken to Guantanamo -- 14 years old.  It is likely he was there when members of Congress visited.

Are there other minors or persons who were arrested as minors -- and I can answer that question myself.  I believe it's yes, because I know there were Afghanis who went in as minors -- in custody at Guantanamo Bay? His legal representative recently traveled to Chad to advocate on his behalf.

Will the Chadian government lobby for his release? What are his options if the Chadian government refuses to get involved?  And do you have the history of why he was sold by the Pakistanis as a terrorist to the United States military? And why would we go to such a level of taking taxpayer dollars to pay for a terrorist?  Could we not surmise how old he might have been?  And did we think that was a productive utilization? What did we think we were doing?

Maybe it was, you know, the day after 2000 [sic] 9/11. Maybe we were so in an uproar and concerned, certainly about that enormous tragedy that we thought we were acting, if you will, efficiently and effectively.

Mr. Stafford Smith, what possessed us to engage in that manner?

SMITH: Well, I think it all goes back to the crisis that we were facing.  And we've got to face the fact that people were in a panic back then. And they were responding, perhaps, as they thought best. And this notion of paying bounties was what some people thought was the best way to get to the truth.

But unfortunately, it led us to make a lot of mistakes. And it led us to basically purchase Mohammed El Gharani, who certainly because he's from Chad, and certainly because he faced discrimination in Saudi Arabia, was fully aware of the way he was basically being bought and sold.

SCHAKOWSKY: But he was 14.

SMITH: He was 14.  But, you know, I could give you long history. And I'd be glad to.  I don't want to...

SCHAKOWSKY: I know.  What is the result -- I've asked a series of questions. What's his status now?  Is the Chad government going to get involved?

SMITH: He's still being held there. He hasn't been cleared for release, even though in my personal opinion he's no more a terrorist than my grandmother. But, you know, we just need to have a fair hearing to determine this. He's not the only minor in Guantanamo Bay. We have identified potentially 64 people. We can't be certain about all of them. A lot of them have been released now. But for example Omar DeGuys (ph) [Deghayes]-- I mean, not Omar DeGuys (ph) [Deghayes]-- Omar Khadr and Mohammed Jawad, two of the first three to be charged in military commission, were both concededly juvenile.

So we've got plenty of juveniles left in Guantanamo Bay.  And we need to take very seriously our obligation.

SCHAKOWSKY: But you don't think these tribunals are the forum for trying to address the concerns of your client and the other minors.

SMITH: Certainly not with Mohammed El Gharani. He's not charged with anything and never will be. We need to get him out of there. And I have had someone from my office go to Chad twice. They tell us that they have had no contact from the State Department about taking him back there at all. We have now tried to initiate that contact. But Chad's not a rich country. They don't have people that they run around as their lawyers. And Chad's willing to take him. They're perfectly a happy to take him.  And we need to send this child home, so he can get on with his education, which is what he should have been doing.

SCHAKOWSKY: He's been there how long?

SMITH: Six and a half years.

SCHAKOWSKY: Six and a half years. No charges.

SMITH: No charges.

SCHAKOWSKY: Lieutenant Colonel Abraham, is that befitting of the reputation, image and the goals of the United States in fighting terrorism?  Sixty-four youngsters, a 14-year-old?

ABRAHAM: I can't speak to everybody who has ever put on a uniform. But I know that, in the time that I have served, and the people with who I have served, two observations. The first is, as a second lieutenant, I raised my hand and stated an oath of office.  And with each promotion, I repeated it.

And I find nothing befitting in what was done that matches the conduct that was expected of me and that I expected of those with whom I worked, and who worked under me in those 26 years. And I will also tell you, Madame Chairwoman, that in the time since the declaration was first written, I have received a number of letters from flag officers, and from junior officers, and from enlisted with far more time in the service than I ever had, who have said to a person thank you. This is what we expected the military to be.

I take great honor in every one of those letters and those comments.

SCHAKOWSKY: And that was when you were pressing the envelope of justice or trying to ensure fairness.

ABRAHAM: That was when, as a lawyer from one of the firms representing a detainee said, Mr. Abraham has engaged in career suicide. Take that for what it's worth.

SCHAKOWSKY: And that is unfortunate. But let me pay tribute to you and the many others who stand for a sense of justice in this very difficult process.

Mr. Denbeaux, the professor, can you give us the origins of enemy combatant in a very succinct -- was this a singular decision of the Defense Department and the AG at that time? I have no recollection of a congressional vote.  So refresh my memory.

DENBEAUX: I suspect many people will know how to answer that question better than me.

SCHAKOWSKY: I'm sorry, sir. I can't hear you.  Can you...

DENBEAUX: I suspect many people in this panel can answer that question better than I can. I'd simply like to point out that the definition of enemy combatant doesn't require combat. That is, you can be an enemy -- 55 percent of the people in Guantanamo aren't accused of ever doing any hostile act. My students refer to them as enemy civilians. And the fact of the matter is that, the definition of enemy combatant itself is what offends me. The origins of the term that created such a problem, I think perhaps almost everybody else here can explain better than I can.

SCHAKOWSKY: And I'm going to ask Mr. Willett.  Let me finish with Mr. Denbeaux just simply saying that we would like -- I assume you have submitted your statement in the record. But I think it's important on this question of recidivism, that might be the tallest mountain to climb.

I recall a recent news article that cited an individual that had been released from Guantanamo Bay and was either in -- and my memory fails me.  I don't know whether it was -- where.  I don't want to call out a country's name -- and, of course, had engaged in some act.  But they went back to Afghanistan. And so we've cited that over and over again.

I think your research on the question of misrepresentation and whether or not it is two or three or 12 or 30, it's very, very important; because in order to get us back on track, eliminating enemy combatant I think by a legislative fix, if you will, and that terminology; assuring the American people that we're not opening the gates for terrorism to run from one end of this nation to the next; and two, getting down to the core what we need to do -- that if we do have and have captured a terrorist who goes through this process, whether we have to build a site, we can hold them with the affirmation and approval of the world, and fight terrorists with the affirmation and approval of the world.

They know that we are fighting terrorists and not fighting 14-year-olds.  So your recidivism information will be very important. And I don't know whether you've concluded it or not.  But I would certainly like to see its conclusion as to whether or not we have a problem with recidivism, or whether it's been misrepresented to us.

DENBEAUX: I hope that my statement in the previous reports that I have submitted as part of that are in the record.  So you can have all that information.

SCHAKOWSKY: And your conclusion was -- and forgive me for not hearing your...

DENBEAUX: My conclusion was that our government actually can't figure out how many people have returned to the battlefield.  But the number, giving them the benefit of the doubt, is tiny -- two or three. The person you're referring to now, we refer to as detainee known as ISN-220. That's a remarkable person, because the biggest problem that the government has with that -- remember our methodology is to assume everything the government says is true.  We don't know if it is or not.

But this is somebody the military said please don't release. This is somebody who will kill if he is released.  Somebody -- and we don't know who, why or how or for whatever reason -- approved his release.  The Defense Department doesn't follow people after they're released.  And three years later, he apparently had engaged in a suicide attack.

One of the questions that my students keep asking me is why was he released? Who decided to release him?  Because the missing part of this whole equation is there's no accountability for our conduct.

SCHAKOWSKY: At any time.  And the other part of it is that we've already concluded that the tragedy of 9/11, besides the enormous loss of life, was the incoherence of our intelligence and our intelligence community from all sectors, including DOD, DOJ and others, to have intervened or been preventative. So in this instance, one hand didn't know what the other hand -- we released him against the wishes of the DOD. And then didn't have the intelligence community prepared to consider him trackable.  You raise a very good point.

Let me let Mr. Willett.  And then I'm going to close thanking the witnesses for their indulgence.

Mr. Willett?

WILLETT: Congresswoman, I was going to come back to your question about enemy combatant.

SCHAKOWSKY: Yes.  And its origins.

WILLETT: You have to understand, the origins of the term are long after the Guantanamo prison was populated. They began in 2002. They began bringing prisoners there. In 2004, the Supreme Court said these people are going to have some kind of process. And at that point, the Defense Department made up this phrase...

SCHAKOWSKY: I'm glad you said that.  So it was an administrative act.

WILLETT: It was an administrative act in July 2004. And what they endeavored to do was to conflate ideas from military law, where you can hold as a detainee the enemy soldier. But he's a person of honor. You don't treat him with any dishonor. They tried to conflate that idea with the idea of criminal law, where you have a wrongdoer. Problem is, in the criminal law, the wrongdoer gets process.

So by mushing the two together, they came up with an idea where there's no process, and we can treat the person dishonorably and forever.  And that's what we have in Guantanamo today.  If you return to military law, as Mr. Stafford Smith said, if you return to the Geneva Conventions, the rules are already there. You can hold during the pendency of active hostilities the enemy soldier. You treat him just like you treat your own soldiers.

A prisoner of war camp is not a place of dishonor. Indeed, its written right in the Army regulations that the commandant of the camp is obliged to return salute. Can you imagine somebody saluting a Guantanamo prisoner? I can't.

Well, you treat them like an enemy soldier. And then, if there's some suggestion that this person has engaged in crime, he's a terrorist for example, you try him.  You court martial him.  If he's convicted, you sentence him.

Those rules have been there for years.  We don't need new rules. The rules are there.

SCHAKOWSKY: And the sentencing can be extreme.  Right?

WILLETT: Oh, of course it can.

SCHAKOWSKY: I mean, there may be -- though I may not promote this -- they may possibly be sentenced to death?

WILLETT: For sure.

SCHAKOWSKY: Is that possible?


SCHAKOWSKY: So if the crime is heinous enough, if the alleged crime, if they determine that individual happened to have been a terrorist, happened to have been actively involved in terrorist acts, they could be subjected to the highest of penalty.

WILLETT: They could under military law. We didn't need new rules. The rules are all there. And the new rules were invented, in effect, to avoid any kind of accountability. And now the Congress is left trying to clean up the mess seven years later.

SCHAKOWSKY: Well, let me thank each of the witnesses.  Mr. Sulmasy, Mr. Willett.

Mr. Sulmasy, I just want to say you may not have gotten as many questions. I think the ranking member certainly queried you.  But you gave a most important statement, as I questioned you, which is that there may be a light at the end of the tunnel for people who have different perspectives on this issue. You've at least acknowledged that the enemy combatant is certainly wrong thinking and wrong-headed. So I thank you. I know you have many other points that you've made eloquently.  But I thank you for that.

SULMASY: Thank you.

SCHAKOWSKY: And we might find common ground.

Mr. Willett, Mr. Stafford Smith, Mr. Denbeaux, and Lieutenant Colonel Abraham, again thank you for your service.  Certainly if the other gentlemen have served in their previous lives, we thank you for your service as well.

Chairman Delahunt called this hearing, the City on the Hill, the Prison on the Bay: The Mistakes of Guantanamo Bay and the Decline of America's Image. And frankly, I think you've added an enormous perspective to this debate. It is clear, from my perspective, that we went down the wrong trail, the wrong direction, under best intentions, by declaring one, Guantanamo Bay was the best approach.  But then subsequently, utilizing a terminology that has cost America a lot. And it certainly could be argued as to whether or not we have made America safer.

It will be my intent to work with this committee legislatively. And I know that much work is already ongoing. I frankly believe that we should rid ourselves of the terminology and the fractures of enemy combatant. This should be combined, however, with enhanced intelligence. It should be combined with -- maybe as Mr. Willett has said, don't reinvent the wheel; but to go back to the international convention or the convention that has been utilized with some subsets dealing with those who may have been, or are charged, with criminal acts.

I think the gentleman who was in Germany, Mr. Kurnaz, was a glaring example of the error of our ways. The 14-year-old, who I understand now is still a Chad by birth, who is still incarcerated now five, six years, and others are glaring evidences that we're doing ourselves no good.  We're doing ourselves harm.

And I conclude by saying that we can secure America on the grounds of a constitutional premise that America's lived by for 400 years. That should give some credibility, that democracy and freedoms actually work. We have survived 400 years plus. Other nations have not.  And so I don't know why we are so frightened by mixing and recognizing we have to secure America. But that civil liberties, civil dignities, the basic premise of the Constitution of the rights of prisoners, the treatment of soldiers that we have adhered to for decades, for centuries, or at least for decades, cannot work in this instance.

And so your testimony has contributed to our resolve that this is a broken system.  And as it gives us the resolve, let me counter by saying it should not give terrorists, real terrorists, any comfort; because if we do our job right, if we work with the intelligence community, if we alter our missteps in Iraq, if we get back focused on what our true mission is as relates to terrorists in fighting it -- for many of us, it is the war in Afghanistan, for some; others, it is retrenching back.  But there are adverse opinions.

But certainly, we're not finding our safety in the cells of Guantanamo Bay with people being held without the right for addressing their grievances in the appropriate manner.  I think it is wrong.  I think this hearing has highlighted it.  And none of us today, who have spoken in this context, should be declared non-patriots. I hope that we'll be declared, as history reports us, as people loving this country and true patriots.  We want to get it right.

With that, this hearing is adjourned.  I thank the witnesses.