tv Military Officials Others Testify on Guantanamo Bay Prison CSPAN January 26, 2022 6:49pm-9:10pm EST
next, military officials testify on the possibility of releasing prisoners from guantánamo be. members of the senate judiciary committee examine the legal rights for detainees, national security concerns, and the role previously released prisoners may have played in the taliban takeover of afghanistan's government. this hearing is about two hours and 15 minutes.
the hearing of the senate judicial committee will come to order. theodore dostoyevsky is often quoted as saying that the degree of civilization in a society can be judged by entering its prisons. for the last two decades, the most notorious prison in america has been guantánamo. we know it today, and we know it when the senate judiciary committee held its first hearing on closing the detention city center in ecuador in 2013, eight years and three administrations ago. i chair that committee as chairman of the subcommittee on constitution, civil rights and human rights. at the time, many senior military officials, national security experts and lawmakers on both sides of the aisle agreed that it was far past time to come close guantánamo bay. it's saddens me that this hearing today is even necessary. the story of guantánamo is the
story of a nation that lost its way. it is a story of unspeakable abuse and indefinite detention without charge or trial. elements that are just counter intuitive when you consider our constitutional values. and it's a story of justice delayed and denied again and again and again. not only for detainees, but also for the victims of 9/11 and their loved ones. before we get started, i'd like to share some of these stories with the following video. >> first, i'd like to and guantánamo. i'd like it to be over with. ♪ ♪ ♪ [inaudible] up to be to close guantánamo not tomorrow by this afternoon, at close it. >> [inaudible] is the moral superiority of the
united states if we try to prisoners. >> according to present which, by his second term, the detention facility had become a propaganda tool for our enemies and a distraction for alleys. >> 42 retired military [inaudible] thousand own service committee to forcefully argued for the closure of this facility, is standing there is nearly unanimous agreement for our nation's top military, intelligence and for law enforcement leaders. >> close guantánamo. >> clause one to animal. >> close quote on white house. >> our enemies attacked without conscience. we must not. >> nearly 20 years after we had the attacks on 9/11, the long wait for justice continues. the cia has admitted to [inaudible] two repeated waterboarding, to a degree that stimulates granting. >> you meyer jade mr. khan [inaudible] he said is threatened to rape his sister. >> the detainee's treatment has been a major impediment to resolving the remaining guantánamo cases. in his statement, khan also
cast doubt on the effect of there's not this year you program. nothing the interrogators was doing was effective. whenever i was being tortured, i told him what they thought they wanted to hear. >> for the survivors and family members of the victims, it's a process that has taken for too long. >> justice delayed is justice denied, and now we're 20 years later without justice. >> my son gave his life, and it does not only him that we violate our constitution in retaliation for what happened on september the 11th. >> we have a constitution, we have a bill of rights, and it applies to all persons. >> the stories of torture that came out of quite on wednesday i'd like some of the world are shocking and [inaudible] . >> majid khan recently testified before his [inaudible] active duty u.s. military
officials. during his testimony, mr. khan detailed torture that he suffered at the hands of the united states government, including waterboarding and sexual abuse. when mr. khan's testimony concluded, seven of the eight jurors assigned a handwritten letter recommending clemency. now, make no mistake. mr. khan should be held accountable for his actions. but as the members of the jury reload wrote eloquently, and i quote, mr. khan has been held without the basic due process under the u.s. constitution. he was subjected to physical and psychological abuse well beyond approved enhanced interrogation techniques. instead, being closer to tower being performed by the most abusive regimes in modern history. this abuse was of no practical value in terms of intelligence or any other tangible benefit to u.s. interests. i might note, as i said earlier, seven of eight jurors wrote
this handwritten letter to the court, all of them were career u.s. military officials. for nearly 20 years, 20 years, the detention facility at guantánamo has defined our to fight our constitutional values and the rule of law. today, we live in a world in which the war in afghanistan, our nation's longest war, has finally come to a close, and yet, guantánamo remains open. 39 detainees remain. and more than two thirds of them have never been charged with a crime. let that sink in, two thirds have never been charged in 20 years. how can that possibly be justice? yeah they're 12 detainees are in a military commission system that has failed time and again. interim sharp contrast to our criminal justice system. for instance, the case against 9/11 coconspirators who were detained in guantánamo has never gone to trial more than
20 years after the attack. their head there is no end in sight for these military commissions. they will not provide justice and closure that the families of those who died on 9/11 deserve. at the same time, since 9/11, at the party department of justice has successfully prosecuted nearly 1000 individuals on terrorism related charges, and they have been securely detained by the federal bureau of prisons. we can and we must do better. president biden transferred his first detainee in july. but at that pace, and one detainee every ten months, there will be dozens of detainees at guantánamo even if president biden is elected to a second term. to finally close this facility, we need to take a new approach. senator leahy and i sent a letter to president biden in april with 22 of our colleagues including eight members of this committee, laying out the key steps the administration to take to close the prison. getting this done will demand strong and effective leadership from the white house, as well
as the special envoy at the state department, to negotiate transfer agreements for the detainees who were not charged with crimes. and it will demand swift and divisive action from the justice department, which has yet to bring its legal positions in line with the president's goal of closing comment on. my into lie, i sent a letter to attorney general garland urging him to revisit the justice department's defense of the government's authority to indefinitely hold detainees without charge or trial, and without due process in guantánamo. i'm disappointed, disappointed that the president and attorney general have yet to respond to my letters. and i'm disappointed the administration declined to send a witness to testify to these hearing on how they are working to close guantánamo. i'm going to continue to press this administration to [inaudible] undo in this injustice. the delays in closing closing this facility are not cheap in terms of our reputation and in terms of our treasury. and every day, one town where
retains, remains open, damages are our moral standing and credibility, we can start national security, and wastes taxpayers dollars. how much does guantánamo cost us? 500 and $40 million every year to keep it open. 500 and $40 million for 39 detainees. where he had, as i mentioned earlier, when animal has failed to deliver justice to families who deserve it the most. one of those family members is with us today. i want to thank miss colleen kelly. i want to thank her because she's here today making a sacrifice to appear. and of course she comes to us as a person who lost her younger brother bill in the 9/11 attack. thanks for your courage and your willingness to speak before the committee. families like yours deserve better. it's time for us to live up to the ideals our troop troops risked their lives to defend every day. is trying for us to [inaudible] and work today together to close the detention facility at
guantánamo. i'll [inaudible] send to grassi, for his opening remarks. >> thank you mister chairman, and thank you to all the witnesses that have come. we know that you have to put in a lot of extra time to get ready for these things, and thank you for doing that. today we have 35 men in the guantánamo bay. the included the mastermind of september 11th attack, khalid sheikh mohammed khalid sheikh mohammed and the mastermind of the attack on the uss cole qasem and bashir i'll be cross the violent crimes [inaudible] [inaudible] assistant attorney general mendelsohn that he review of the 240 detainees still in guantánamo at that particular
time. only a small portion could be prosecuted due to the legal and evidentiary channel challenges. some are set for transfer to other countries, and some were so dangerous that the task force recommended continued detention. president biden has recommended closing guantánamo by the end of his tone. he is not the first president to attempt to do so, but as the task force report explains, simply prosecuting or transferring it detainee is not an option in every case. assistant attorney general olson is not here to see whether he has changed his conclusions about continuing law of war detention in guantánamo. there is no representative from the state department to say
what countries are able to provide adequate security for a transfer transfer detainee. no one is here from the intelligence community which has assessed that nearly 32% of the guantánamo detainees are believed to have rejoined their war on the united states. the intelligence community isn't here to say that the top tier leaders still add guantánamo or a safe for release. no one from the administration has come to defend the president's plan to close guantánamo. and i'm not sure that there is a plan. setting a goal, a policy goal, with no plan only invites disaster. over the summer, we watched a no plan approach unfold in afghanistan. to meet a deadline by the end
of august. president biden ordered an american withdrawal over withdrawing warnings from his own senior advisers. i fear that his plan to withdraw from biden's a guantánamo detention facility might be no different. in making decisions on whether en masse on matters of national security, we must ask if a course of action to make americans more sick or less safe? are we protecting the american people? creating a potential safe haven for al-qaeda and isis in afghanistan doesn't protect the american people. bringing terrorists to the united states doesn't protect the american people. releasing terrorists who will only seek to attack us again doesn't protect the american people. the safety of americans isn't the only question, though it is
a top priority. another question is that of accountability. i'd like to enter into the record the letter from terry [inaudible] . terry is the mother of three who lost her husband, tom, on 9/11. today, she's an active member of the 9/11 families united, which serves thousands of families and survivors of the 9/11 terrorist attack. she stated that she and her family, and all of us, deserve justice for what happened. like many victims, family members, she believes that staying the course at guantánamo. i'd like to read from her letter, quote, that the war in afghanistan has ended or that the new administration is in charge, none of that changes our need to prompt justice. for prompt justice. none of that changes our need
for an accounting based on the evidence collected the year over the years. evidence that may not be available anywhere else. rather than lose the opportunity to obtain a modicum of justice for all those last and all of us left behind, the military trial should continue to proceed under the guidelines of a military tribunal, uninterrupted, and as swiftly as possible. the evidence amassed needs to be heard for justice to be served, and this dreadful of our life to close, and of quote. >> the victims of terrorism i'm not just those we lost in 9/11, like terry's husband tom. all over 4000 service members have given their lives in the war on terror in iraq and afghanistan. those it the veterans off there's worth
have given life and limb to protect americans from terror, like those that went on to obey. i hope we will honor that sacrifice. i yield. >> thank you, senator grassley. >> mister chairman. oh, excuse me. >> yes, senator? >> call on others. >> i would be happy to defer to you. >> well, thank you very much. i care a great deal about this issue. i have visited guantánamo when i was's chairman of intelligence we've released a report which was a study of the detention and interrogation program, and this report detailed the enhanced interrogation techniques used against guantánamo detainees at that time. it has changed since but there are still real problems. in 2021, i introduced the bipartisan due process guarantee act, which would
clarify that a generalized authorization for use of military force cannot by itself authorize detention without charge of a united states citizen or lawful permanent resident. i believe i believed then and i believe now that this bill would help ensure the rule of law by preventing the indefinite military detention of u.s. persons without cause. senators whitehouse, crews, the and college our core sponsors of the bill. i am really concerned about having an offshore detention facility which is subject to a consequential day trip to get there and probably does not receive many visitors in a given year. in october of 2021, seven of
eight military officers serving on mr. khan's [inaudible] recommending clemency. and i want to read what they. when mr. khan's abuse was over no practical value in terms of intelligence or any other tangible benefit to u.s. interests. instead, it is a stain on the moral fiber of america. the treatment of mr. khan in the hands of u.s. personnel should be's source of shame for the united states government. i know firsthand about the isolation at the facility. to me, it makes no i know firsthand about the isolation of the facility and it can happen anytime. to me, it makes no sense to house our prisoners there
whatsoever. and one of the things that i hoped many years ago when i went there was that we would have the ability to close down that facility. so, i hope that this hearing may lead to that. thank you very much. >> thank you very much, senator feinstein. we are now going to turn to our panel of witnesses. today, we welcome six witnesses. i will introduce the government majority witnesses, then turn to the ranking members, senator grassley, to introduce the minority witnesses. we are pleased to be joined today by brigadier general -- , the chief defense counsel for the military commissions defense organization. general baker is going to be retiring at the end of this year, after more than 32 years of service to our country. thank you very much, general, for caring about america that way. our first majority witness's major general michael leonard, who served on active duty in
the marine corps for 37 years. after 9/11, he served as the first joint task force commander at guantánamo, where he was tasked with preparing the base to receive the first detainees who arrived on january 11th, 2002. we will also hear from colleen kelly, miss kelly is a family nurse practitioner from new bronx, new york, the mother of three kids. cofounder of 9/11 families for peaceful tomorrows. miss kelly's brother, bill kelly, who lost his life in the north tower on september 11th, 2001. last but certainly not least, is it katya jestin? >> it's katya. >> this katya jestin is co-managing partner at general block and former assistant u.s. attorney for the eastern district of new york. miss jestin has represented majid khan, detainee at one time obey, for over a decade.
ranking member grassley, would you like to introduce the minority witnesses? >> yeah. professor -- >> turn your button on. >> sorry, i didn't turn my microphone on. professor jaffer, currently serves as founder and executive director of the national security institute and is an assistant professor of law and director at the national security law and policy program at the antonin scalia law school, george mason university. professor jaffer previously served as chief counsel and senior adviser to center foreign relations committee, senior councils of the house intelligence committee, social counsel to president george w. bush, and consul to assistant attorney general for national security at the u.s. department of justice. mr. charles stimson is a deputy director at the ed wynne mace center for legal and judicial
studies and manager of the national security law program at the heritage foundation. before joining the foundation in 2007, mr. stimson served as deputy assistant attorney, assistant secretary defense for detainee affairs. he advised then secretaries of defense, donald rumsfeld, and robert skates, and coordinated the pentagon's global detention policy operations, including at guantánamo bay and iraq, and afghanistan. mr. stimson has also served as a military prosecutor, defense counsel, and recently served as deputy chief judge, navy marine corps, trial judiciary. he continues to serve with a rank of captain as commanding officer of the preliminary hearing unit. thank you both for coming. >> thanks, senator grassley. after we swear on the witnesses,
each witness will have five minutes to provide opening statements and then rounds of questions with each senator every five minutes. please try to remain within your allotted time. so, first, could all the witnesses please stand to be sworn in? kind enough to raise your right hand? do you affirm the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you god? let the record reflect that the witnesses have all answered in the affirmative. general baker, will you proceed with your opening statement please? >> i thank chairman durbin and the members of the senate judiciary committee for inviting me to testify today. i would like to emphasize that the outset that i am testifying solely as the chief defense counsel for the military commissions, defense organization, and not on behalf of any accused. moreover, to be clear, the views that i'm about to express will do not reflect the views of the united states, the department of defense, or any defense department agency other than my own. my views do reflect, however,
32 years of service in the united states marine corps as a supply officer, and as a judge advocate. including as a prosecutor and as a military judge. as you noted, i retire at the end of this year after six and a half years as the chief defense counsel for the military commissions. the title of this hearing is, closing guantánamo, and in 20 years of injustice. because my authority is limited to oversight of the military commissions defense function and not on other detention operations, i will not address the issue of closing guantánamo. however, i can and i will speak to ending 20 years of injustice. the only path to ending injustice in the military commissions for the defendants, for the country, and above all, for the victims, is to bring these military commissions to as rapid a conclusion as possible. notice, i don't say as just a conclusion as possible. it is too late in the process
for the current military commissions to do justice for anyone. the best kept that can be hoped within 20 years after the crimes were committed is to bring this sorted chapter of our american history to an end. and that and can only come through resolutions negotiated in good faith by the parties. whatever the intentions, no one today can seriously argue that the military commissions in guantánamo have been anything but a failed experiment. and they're almost 20 years of existence, under four different presidents, the military commissions have reduced one final conviction. to be sure, there have been seven other convictions, but three were overturned in their entirety and the other four had not completed the appeals process. the victims have waited 20 years in vain to see justice done. the 9/11 conspiracy was originally charged in 2008, almost 14 years ago, and there is no date set for trial. the fact that the military commissions have been unable to bring the man charged with the worst criminal act in united states history to trial, 20
years after the fact, is alone enough to indict this system as a failure. in fact, none of the active cases have a trial date set. these delays are a direct result of the government's decisions that have corrupted the process from the outset and have made legitimate convictions and fair sentences virtually impossible. the ultimate source of the commission's problem is their original sin, torture. the united states chose to secretly detain and torture the man it now seeks to punish. this torture impacts and undermines every aspect of these prosecutions. more specifically, the governments fear that the truth will become public is what has been the most destructive to a fair process. the government has effectively refused even to disavow its use of torture by adopting morally indefensible positions like arguing for the admissibility of torture derived evidence in pre trial proceedings. as i discussed in my written testimony, there are a
multitude of flagrant and potentially reversible legal violations infecting the commissions cases that i don't have time to discuss here. but it is on the basis of this record, with these sorts of due process errors baked in, that federal appeals courts will decide whether the military commissions defendants received a fair trial and whether their sentences including any death sentence can be allowed to stand. even if these proceedings were otherwise fair, which they manifests of lee have not been, or if the defendants have not been tortured cruelly by the united states, which they were, it is unconscionable that the government is gambling closure for the victims along with extraordinary resources and endless delays in an attempt to obtain such fragile verdicts and dubious death sentences. the more humane route for all parties is negotiating resolutions that give the victims at least a modicum of
justice and the closure they deserve now. i will conclude on a more optimistic note by assuring you that as long as the military commissions remain open, the military commissions defense organizations defense teams will continue to be the voice for justice at one time obey. i thank you again for your invitation and for your time and attention. >> thank, you general. miss colleen kelly. >> thank you, good morning, chairman durbin, ranking member grassley, members of the committee. thank you for this opportunity to share my story. i am a family nurse practitioner in the bronx, new york, and the mother of three grandchildren. my younger brother, bill, was killed in the north tower of the world trade center on september 11th. bill was 30 years old and starting to really come into his own. he was a decent chef, bartender, and ever hopeful duck hunter, and a guy as comfortable in serving shorts as in a business
suit. bill worked at bloomberg trade book and his four sisters would fight over who got to be bills date at the annual holiday party. bill did not work at the trade center, he happened to be there for a conference that he had repeatedly asked his boss for permission to attend. bill's boss acquiesced so in a twist of fate, bill was in the wrong place at the wrong time. bill sent messages to his coworkers saying he was trapped and at first, he was hopeful that the fire department would save him. 343 firefighters lost their lives that day, attempting to do just that. i tell you this to emphasize that each of the 2977 people murdered on september 11th has a family, has coworkers, and friends. and for all of us in this country, there has been no justice or no accountability has yet. bill, my sisters and i, grew up in a divided household of sorts. my mom is a democrat and my dad is a republican.
so i feel pretty comfortable sitting here today in another divided household. this feels like my family dinner table with a few extra friends. last week, i asked my 84-year-old father for his thoughts about the 9/11 military commissions. his reply, this is not justice. after 9/11, my cofounded september 11 families for peaceful tomorrows. each of our 260 members lost a relative of 9/11. we believe that the rule of law is a bedrock principle of our nation and after 9/11, we expected our government to uphold the rule of law in seeking accountability for our relatives deaths. yet, this is failed to happen. peaceful tomorrows obtained official observer status in the commissions because we felt it was important to bear witness not only for our loved ones, but for the outside world. so, i come to the following conclusions, having observed the commissions both firsthand at guantánamo and at family
viewing sites. five men in guantánamo stand accused of planning and supporting the 9/11 attacks. a trial has not begun, instead, we've heard at nine and a half years of argument in pretrial hearings. and instead of learning how and why the attacks that killed our family members were carried out, we have listened to seemingly endless litigation, largely concerned with obtaining classified information about the defendants torture. families have watched in frustration as one judge after another has been replaced. there is a new acting chief prosecutor, a soon to be new chief defense council, a new learned counsel for one of the five defendants, and numerous other changes. i've lost count of the number of committee authorities but i know it is more than ten. in may of 2012, i sat with my dear friend, rita lazar, watching the arraignment of the 9/11 accused. reed's brother, aid, died when he stayed behind to assist a
disabled coworker on the 27th floor of the north tower. rita is now deceased. in 2017, i was on the plane to guantánamo with lee hansen, the only 9/11 family member to be deposed in the pre trial hearings. lee hansen lost his son, his daughter-in-law, and his granddaughter on flight 175. mr. hansen is now deceased. in 2019, i was on a boat crossing guantánamo bay with alice hoagland, mother of flight 93 hero, mark gingham. alice hoagland is now deceased. the point is that family members want a measure of accountability and justice before our deaths. today, i am asking this commission to acknowledge that the military commissions have failed and to help us gain some sort of resolution through plea agreements in the 9/11 case. we understand that in exchange for guilty pleas, the government would likely drop the death penalty. what we would hope to finally
get, however, is answers to our questions about 9/11, information we've been denied for two decades. some may not see this as justice, indeed, it is not the outcome that our organization advocated for in our founding, but it is a way forward. 20 years ago, while people around the globe watched the towers burn, i watched my brother, bill, being murdered. one agonizing moment after another. my family still does not have any of my brothers remains. so i am asking this committee to deliver the next best thing. a resolution to the 9/11 cases that provides justice for the death of our family members, answers to our questions, accountability for unlawful acts, and a path to closing guantánamo. perhaps, then, this long festering, collective, national wound can finally begin to heal. thank you and i look forward to discussing further. >> thank you, miss kelly.
mr. stimson. >> mister chairman, and ranking members of the committee. thank you for the chance to testify today. my name is charles charles stimson i'm a senior fellow at the national heritage foundation and [inaudible] not the heritage foundation, the navy or the department defense or any other organization. tell me views to reflect my [inaudible] as an assistant u.s. attorney, and my time at the pentagon as the head of detainee policy during the bush administration. let me say want to privilege it is to be testifying to each of the panelists here today, each of whom i halted and the highest esteem, especially my friend john baker, who has given 32 years of distinguished service to this country, and whose written testimony i would like to associate myself with. i would like to make five quick points. first, the united states remains in the state of armed conflict and as such, we are
indicted under domestic and international law to detain opposing enemy forces for the duration of hostilities, including the terrorist currently at one town will be. this is the first war in history, as we celebrate the 80th anniversary of the bombing of pearl harbor, where we've let the enemy go during the war. and because of the hard work by the bush and obama administration, as we know, who each of the 39 detainees are, the threat that they pose, and the threat that we would need to -- transfer them before the conflict ends. a second, since at least 2005, it essentially facility add to get more gitmo [inaudible] incumbents was common article -- of the geneva defenses. that's not my -- that's the opinion and findings of both in the bush and obama administrations. in fact, when after the deputy head of the organization for security and cooperation in
europe, alone grenard, visiting one town went 2006, he told the newspaper brought from the fall, unquote, had the level of detention facilities it doesn't model facility where people are treated better than in boston prisons, unquote. now there was, as well documented, did to any mistreatment when the facility was first opened. that was inexcusable, it was unacceptable, and not consistent with our values as americans. but since then, detained care and treatment has been improved, and since president bush's second term and beyond, detain-y care and treatment including medical and dental care, nutrition and alike, have far exceeded that required by law. third, the president has wide discretion as commander of chief to decide where to retain opposing enemy forces, how long to detain them, and whether and when to release or transfer them during ongoing armed conflict. it's ironic on this 80th anniversary of the attacks of
her pearl harbor that we are debating the location of where to keep and we saw the united states, or whether we should even consider detaining that during an ongoing armed conflict. 21% of the detainees transferred during the bush administration are confirmed to have really engaged in terrorist activity, according to the dni. fourth, in the debate over closing guantánamo has been overtly political. the year 2009 was the most opportune time for an administration to close guantánamo. president obama won the white house, promising to close get more, democrats held a 57 to 41 majority in the united states senate. externally in the house of representatives the democrats involved the 247 is 78 advantage. if the president did need any legislation to cause one town, which is debatable, or simply the political backing of the parties with the majority of shots of the high houses of congress, the stars were long for him to do. so what you felt in large part because some members of congress failed to show
political courage or their own conduct the convictions, as i detailed in my own written testimony. finally, i conducted the first classified study of how to close gitmo back in 2006 when iran detainee policy in the bush administration. i was prepared to help close the facility then. if we were to do so, and i would have supported its closure in a responsible way. and in fact, i spoke to the obama detail the policy task force when they took office early on, and advised them how to close it responsibly. and as i detailed in my written remarks, to close guantánamo in a responsible manner, and administration was focus on the legal, logistical, political and diplomatic challenges as i detailed in my testimony, and then spend the political capital and show courage to get it done. thank you, and i look forward to your questions. >> thank you very much, mister stimson. major general michael lehnert.
>> chairman durbin, ranking member grassley, members of the committee. thank you for the opportunity to appear before. the goal of terrorists is to change our behavior and make us live in fear. by that metric, they have accomplished their mission. each of you will recall those terrible days after 9/11. some of you were here. others among you wore the uniform of your nation's military as i did. all of us felt an incredible responsibility to the american people we'd sworn to protect. constituents demanded answers and action. i was in newly appointed brigadier general assigned to command a course of 1000 soldiers and marines at camp [inaudible] in north carolina to what we can do jim. as we began to take captive there enough galveston the question what to do with them became imperative. the bush administration settled on guantánamo. i had previously commanded of was charged with securing 8000 cuban and haitian migrants at guantánamo. because of this, background the urgency of the situation and the [inaudible] ability to deploy rapidly, i
was chosen to leave the joint task force to build to secure facilities to hold the first 100 detainees. we received our deployment order on friday, january 4th, 2002. we were given 96 hours to does ploy to cuba and build the first 100 cells until the army could take over it lasted about 100 days. the speed of guantánamo's creation and the urgency to gain information had bad consequences. the legal ambiguities that make guantánamo an attractive choice for some policy makers sets up extraordinary challenges for soldiers, sailors, airman, and marines who must execute these policies. we do not shed our oath to the constitution or responsibility to adhere to u.s. laws and the international norms when we deploy. the subsequent decision to subject detainees to enhanced interrogation techniques and to avoid application of the geneva conventions except when it
suited us, cost us international support and aided the cause of our enemies. speaking plainly, we are here are today because of those misguided policy decisions, to cast aside our values and the rule of law. i am not an attorney but even i know that when you forego generations of legal fought and president, bad things happen. the vast majority of the 780 men sent to guantánamo never should have been there. among the 39 prisoners who remaining guantánamo there are some who need to pay the price for their crimes. but what we have now is not justice. there is no justice for the detainees but more importantly, the relatives of the victims of 9/11 and of other terror attacks deserve justice, and they deserve closure, and they are not getting it. who gains by keeping guantánamo open? not america. those who would harm us are the ones who gain. they point to the existence of guantánamo's proof that america is not a nation of laws. the use guantánamo as a
recruiting tool. they do not want us to close guantánamo. some of you might be thinking, my constituents don't ever ask me about guantánamo and you would be correct. most of america has forgotten about guantánamo. but here me when i tell you that our enemies have not. closing guantánamo responsibly restores the reputation of america. ensures accountability for those who have committed crimes against us, and provides closure for the families of those who they have harmed. the issue is not whether to close guantánamo, but how. so, how do we close it? here are some suggestions. first, make someone in the white house currently responsible for closure and give them a finite period of time to make it happen. i was given 96 hours to open it, 96 days to close it seems reasonable. whoever gets this thankless job needs the authority to direct unnecessary elements of our government to make it happen. second, there also needs to be a senior officer official at the state department in charge
of negotiating transform. more than two thirds of the remaining detainees, 27 of them have not been charged with a crime. these detainees must be transferred either to their country of origin or a willing host nation. 13 have already been approved by transfer, by our defense and intelligence agencies, continuing to hold these on charged detainees cost the u.s. taxpayers $13 million annually per detainee. ties up troops that could be used elsewhere, and makes a mockery of our system of justice. let's stop admiring the problem and transfer these detainees out of guantánamo without further delay. for the remaining 12 who have been charged, it is time that we recognize that the commissions have failed. i have little sympathy for these men and a great deal of empathy for the victims. but by any objective standard, the military commissions have failed while our federal courts have been remarkably successful. holding our enemies responsible and securing significant sentences for terrorists. the victims of these men deserve justice, they deserve
closure. they do not find it through military commissions, even though some very good people have tried to make them work. at this point, we must bring these cases to close through negotiated plea agreements, even if we wants to see resolution in our lifetimes. it may require taking the death penalty off the table. if that is the case, so be it. the death penalty serves no useful purpose other than providing martyrs for our enemies. again, i am not a lawyer but i understand that plead eels could be reached within the commissions themselves or by video in federal court. in those agreements, the parties could make arrangements for where convicted defendants can serve out their sentence. now, some of you are going to worry about the detainees who are released might turn around and try to harm us. the question of risk is real and i acknowledge it. my life as a marine involved managing risk but in my view, the damage caused by continuing to ignore the rule of law and gifting route a recruitment tool to our enemies, far outweighs the risk that some of some of these a.g. aging and
sickly -- it's hard to overstate how damaging the continued existence of guantánamo has been to our national security and the fundamental values we stand for as a nation. who we are cannot be separated from what we do. it is past time to close guantánamo and reaffirm who we are as a nation. thank you. >> thank you, general. mr. jamil jaffer, i hope i pronounce it correctly. >> thank, you chairman durbin. member grassley, -- i appreciate the opportunity to testify today and discuss the detention of terrorists at guantánamo bay, cuba, and the current threat facing our nation from terrorists. members of the committee, the fact of the matter is, the war on terror is not over. the director of the fbi, the director of the national counter-terrorism center, the director of national intelligence, our chairman of the joint chiefs of staff, and the commander of u.s. centcom have all made that abundantly clear. we are still, our enemies have made it abundantly key. clear they continue today to plot terrorist attacks both
here in the united states as well as abroad. it is in that context that we are discussing the question of what to do about the detainees remaining in guantánamo bay. we know today that isis and al-qaeda continue to aspire to conduct major terrorist attacks here in the homeland. to be sure, their capacity conduct such attacks has been reduced, including over the last two years, by the sustained counter-terrorism pressure that's been brought to bear by this administration and the prior administrations before it. that being said, new ungoverned spaces continue to rise in places like afghanistan, where our precipitous withdrawal has allowed the taliban to return to power, terrorists support and al-qaeda network to remain, members of government in the taliban government, and isis k, isis khorasan, to continue to plot terrorist attacks including the deadly attack conducted killing 13 american soldiers at hamid karzai international airport earlier this year. so we know that our enemies
continue to target us. we know that the war on terror continues. question, then, is what we do about these detainees? we know also that these detainees currently remain in guantánamo bay, some of them represent the most hard-core, the most committed of the terrorist we've captured in this conflict. to be sure, these individuals have aged with time, they've been out of the fight, some for two decades. that does not change the fact that they represent the most committed terrorists out there. and this takes place also in the context of the fact that we know that individual terrorists and their release, on the return to the fight, can have a huge impact on the operations of terrorist networks. one need only look at al-qaeda in the iberian peninsula, which be began as a cavalcade of small groups that came together in the leadership of -- and the inspiration of summer khan, both americans, who took to the fight there in yemen and
made al-qaeda -- one of the most threatening terrorist groups to americans here at home. the number of attacks that a q ap conducted both in yemen and threatened against the united states in the aftermath of just two americans joining the fight was a significant. and so, when we consider what to do with these detainees, continue to detain them, transfer them, plead them out, or the like, the question must become, what happens if eventually they do return to the battlefield. and this is not a theoretical threat. we know because of what the officer of director national intelligence told us that over 800 detainees, 700 plus detainees that have been released from guantánamo bay, one third, fully, one third have returned to the fight or are suspected of returning to the fight. so these are not theoretical questions we face, these are very real questions. to be sure, the situation at guantánamo bay is not ideal. it has not been ideal since the beginning and the things that have taken place both that guantánamo bay and in other
places during the capture, rendition, and detention of cats suspects have been a challenge to our nation and its character. at the same time, when we consider what to do with the remaining 39 individuals, we must ensure that the american people are fully and adequately protected. so, if we think about bringing these detainees to the united states, we must ask ourselves, what rights will again under our laws, what opportunities will they have that they do not have today? we know that at guantánamo bay, the supreme court has said, these detainees have the right to -- but they have no other rights under our constitution. they are foreign nationals held during an ongoing conflict. if we bring them voluntarily into the united states, there's the possibility that they will receive significantly more rights and significantly more opportunities under our own laws. and as a result, as we think about these very hard and difficult questions, we have to consider both the individuals at one time obey, their status, and the continued ongoing war
on terror. thank you for the opportunity to present my views. i look forward to your questions and ideas. >> thank you very much, miss jestin. >> chairman durbin, ranking member grassley, members of the committee, thank you very much for the opportunity to address you here today. my name is katya jestin and i am a lawyer, general law in new york. i've spent my career practicing criminal law. both on the defense side and as a federal prosecutor. through my experience as a prosecutor, i developed a deep respect for the rule of law. and there can be no serious dispute in 2021 that guantánamo is a failure. it harms our national security, undermines the rule of law, and weakens our international standing. as the title of today's hearing correctly states, guantánamo has produced 20 years of injustice. the military commission system is a glaring example of that injustice. the system has failed in
virtually every respect. it has shamefully failed for the victims of terrorism and their families. it has been 20 years since 9/11 and this chapter needs to be closed. i have spent months in the detention facility in guantánamo. for over ten years, i've represented majid khan, a man who committed serious crimes. madrid also spent years at cia black sites and suffered unspeakable acts of violence and abuse, torture. but notwithstanding the very un-american treatment that he received at the hands of u.s. personnel, majid determined to resolve his case in the military commissions. he took responsibility for his crimes and he pled guilty. he became a co-operator and he has been assisting the united states for decades and given his cooperation, he is to complete his military commissions sentence in february of 2022 and will need to be transferred, then, from
guantánamo to a place in a manner consistent with the way the government treats cooperators in important cases. but majid's case charts a course here about how the government can and should resolve the remaining military commissions cases, which is a critical part of fulfilling the government's policy objective of closing guantánamo. the remaining contested cases currently pending in the commissions system are going nowhere. let's be honest, these cases are as far from a trial now as they were when they began, most many years ago. put bluntly, the contested proceedings in the military commissions as opposed to negotiated guilty pleas are doomed to fail for at least two reasons. first, the commissions lack legal clarity. they are perpetually mired and unsettled complex legal issues that scuttle any effort to conduct trials at pace. second, there is the issue of torture and the cloak of
secrecy surrounding it that the executive branch still fights to maintain. torture infects almost every aspect of a commissions proceeding. it is the third rail in the system. the quagmire of the commissions is a miss character of justice for the victims of terrorism and their families, like michael panelists, colleen kelly, who lost her brother on 9/11. and calling deserves better from our government. the victims and their families deserve transparency about what happened and he was involved in 9/11 for a modicum of closure. and make no mistake, unless the white house proceeds with a comprehensive guantánamo closure policy, this quagmire will remain and the shameful status quo will continue. the commissions is merely a thin veneer of a legal process that serves one objective, and that is to keep the detainees under wraps so that they cannot describe what happened to them in cnn detention. and that, above all else, appears to be the goal of the military commissions. not truth, not justice, not
accountability. they exist merely to keep the dark chapters of our recent history in the shadows and continuing to litigate the contested cases is the legal equivalent of a road to nowhere. and one of the 27 other men there who have not been charged with any crime? they need to be transferred. how can we, as a nation, indefinitely charge human beings with no charge and no trial for 20 years without any foreseeable end? what is the say about our adherence to democratic principles and the rule of law? in closing, i want to remember the words of senator john mccain in 2008, when he asked a question that i ask each of you today. what is the moral superiority of the united states of america if we torture prisoners? what makes this country great, what makes me proud to be an american is what we aspire to be and guantánamo falls fall short of those aspirations. thank you. he questthanks so much for your testimony and i will begin the
questioning. let me say at the outset, general baker and general lehnert, and to all of the members of the panel. this is some of the most powerful testimony i have heard and the credibility that general baker and retired general lehnert bring to this issue really makes it even more powerful and forceful. both of you have enjoyed irresponsibility commanding our men and women in uniform and also, accepting assignments as you mentioned, general lehnert, 96 hours to set up something like a guantánamo detention facility is an incredible design meant assignment. but in reading your testimony, particularly general baker, it is very clear to me what has happened. you say at one point, the military commissions have been able to bring the men charged with the worst criminal act in the united states history to trial 20 years after the fact
and 14 years after they were first charged. this alone is enough to prove that the system has failed. it seems to me that we put these prisoners, these detainees, in a black hole on an island which we can claim as not part of the territory of the united states and to say that we would treat them in some kind of unusual legal manner with these military commissions. as the testimony has made clear, that experiment failed and you said as much, general baker, in your opening statement. so general lehnert has suggested there will come a point that the best we can hope for to finally put an end to this chapter is some sort of plea negotiation, in terms of the outcome and where these prisoners are held, if they are held from this point forward. general baker, would you like to comment on that suggestion? >> yes sir, i would agree that plea negotiations resolutions are the only way out. i became the chief defense
counsel in 2015. we are further from trial today than we were when i started. so, this legal quagmire, i don't see a way out. the status quo is not working. >> i would like to ask you, general lehnert, to respond to mr. jaffer, has any type of resolution for these detainees being held going to give aid and comfort to the enemy and put america at risk? >> i think that what is putting america at risk is the status quo, it's continuing down this road. >> general lehnert? >> senator durbin, i agree with general baker and i would also add the point, with respect to our minority witnesses, who i thought did a remarkable job, you know, i had held 13 separate commands in 37 years. and with command comes a remarkable power and authority. and one of the questions i would always ask myself is,
it's not can we do something, but should we do something. and i think, in this particular case, we have a responsibility here today to ask ourselves how history is going to judge the united states in the long term. and in my view, i would close guantánamo, sir. >> miss jestin, it was an extraordinary thing went seven of the eight jurors in here in your client's case created this hammered letter which we have a copy of. can you explain the circumstances behind that? >> thank you, senator. yes, mr. khan's sentencing hearing that occurred this year at the end of october, mr. khan, through agreement with the government, was given the opportunity to speak for about two hours about what happened to him while he was in cia custody. he did so and it described, in
a fair amount of detail, but he was subjected to while in the black sites. at the end of the proceedings, the military panel of jurors was given the opportunity to not only render a decision on this sentencing, but to suggest clemency if they suggest to do so. and they made that decision to do so and supply that written clemency letter that you quoted from at the beginning of these proceedings, that mr. khan's sentencing. it was remarkable to us, senator, given their position in the military and given the fact that they had had an opportunity to hear everything at the sentencing hearing, including the entire stipulation of fact to which mr. khan pled guilty to and took responsibility for. so, the clemency letter was delivered in the context of full information about the seriousness of these crimes, his contrition, his guilty plea, and then what happened to him in the cia while he was in the black sites. >> thanks, miss jestin.
i might say, miss kelly, i'm going to remember for a long time as he recounted all of the survivors families who passed away, waiting for a moment of resolution or some sort of explanation of what happened to their loved one. it is, i think, stark testimony as to why we finally have to bring this to a close. thank you for your testimony today. senator grassley. >> my first point will be directed to professor jaffer. in light of the poorly planned withdrawal from afghanistan, the administration officials have testified that the strengthen al-qaeda or isis could launch attacks against us from in afghanistan, as soon as six months. it is particularly important to ensure that the worst of the worst at gitmo do not rejoin those efforts. the office of director of national intelligence, as reported that nearly a third of
gitmo detainees reengaged in terrorism. at least a dozen have launched attacks against the united states or u.s. forces in afghanistan, killing at least a half a dozen americans. so, to you, what is the effect of afghans stand fault to the taliban and the creation of a safe haven in afghanistan on the dangers of releasing these detainees? >> thank you, ranking member grassley. i think the situation in afghanistan and our precipitous withdrawal, the detriment of that could not be understated. the taliban, who hosted osama bin laden on the day of the attacks of the 9/11 attacks, are now returned to power. within the ranks, the haqqani network, the -- as a senior administering the government. the deputy head of the taliban. they have refused to comply with all but one of the conditions of the doha
agreement reached in order to facilitate the withdrawal of the united states from afghanistan, including the conditional requirement to renounce and reject al-qaeda. they have not done so. worse still, isis khorasan is now present, no doubt they are fighting with the taliban for supremacy within afghanistan, but they are a serious terrorist group and they are responsible for the deaths of 13 americans at hamid karzai airport. other terrorist groups to our return to afghanistan as they see this ungoverned space as an opportunity to once again consolidate their efforts and fight against the west. they see to conduct attacks in the united states, in europe, and against americans around the globe. the terrorist threat today is worse, specifically because we withdrew from afghanistan and the way in the matter of which we did. >> to mr. stimson, the final report of obama's reviewed task
force, which was completed under the direction of matt olson, noted that there are many challenges to prosecuting, get more detainees in article three courts. these include statutes of limitation, lack of jurisdiction, about the time the offenses were committed, of the 240 cases that the task force reviewed, only 36 were deemed suitable to investigate further for charging and only 12 were recommended for charging in either our court system or the military commissions. so, to you, sir, for the remaining gitmo detainees, as prosecution of the united states civilian court, they are an option. >> thank, you senator grassley for a question. the answer really is, it is hard to tell from where i sit today. we asked miss jestin, and i've --
i am clearly a fan of the use of federal courts in appropriate cases. and to your question, matt olson and his team scrubbed the evidence available in the gitmo detainee files to assess whether, one, they were a -- detainees, to, whether or not the appropriate disposition of them would be better done in federal district court or in military commissions. they recommended, you know, some for one and some for the other. the problem, senator, is that these detainees were not captured in a place like in a city where there was a crime scene tape and -- and so, it's very likely that the evidence may not even exist to be able to prove the case beyond a reasonable doubt in federal district court under the statutes available to even prosecute them. so although they may be, and, our -- detainees, i think the chances
of them being able to be car prosecuted in federal district court or low. >> professor jaffer, what are some of the risks of bringing gitmo detainees two then added states, what could happen, for example, to their immigration status has released in the united states even a possibility? >> well, senator grassley, i think these are very serious questions. we don't know today what the supreme court would do if we were to voluntarily bring these detainees into the united states and hold them here, try them here, whether a law word attention or otherwise. we know that in a limited fashion, at guantánamo bay, the supreme court has it -- again, for nationals captured in an ongoing conflict. so they may get additional rights. if we bring them to trial at the federal court, as mr. stimson correctly pointed out, what about the fourth amendment, what about chain of custody, what about the rules of evidence? there are dozens and dozens of questions that attach to bringing these detainees into the united states, even in law
of war detention, that are unanswered. we don't know what will happen and it raises the question of, if these detainees are tried and exonerated, what will happen to them? will they be held than in immigration detention because they are in the u.s.'s custody but aren't entitled to say in the united states? if so, what happens if, like at gitmo, they are ineligible for transfer, we can't get the right security assurances, and they remain in immigration detention for a long period? then we have the potential for the supreme court, the prior precedent, to suggest that they have to be released into the united states. the odds of that, to be sure, are quite low. that being said, they are not zero, given the supreme court precedent on the question of the tension in the united states rights for detainees and immigration detention, and so we have to consider those facts also as we think about what to do with these detainees and whether bringing them to the united states at this point makes good sense. >> thank you. >> thanks, senator grassley. senator feinstein. >> thank, you mister chairman.
i have thought a lot about guantánamo from the time i visited. i've served in my past on boards that sentenced women convicted of felonies in the state of california, did that for more than five years. and sentenced a lot of people. i know prisons and when i saw guantánamo, and realized it's, isolation and came on the small boat to where it was, i began to understand that this was a facility that is really almost designated, i have no proof of abuse, i know the statistics. but for abuse. and does not really belong in the modern criminal justice system. i think the detention at guantánamo was not thought through. it's been subject to major
legal challenges and it is ultimately served as a rallying cry in recruitment tool for our adversaries. it is nearly 15 years ago, i introduced the legislation calling for it is it's closure and it went nowhere. and i've watched it since then. the annual cost is 500 and $40 million. it's $13 million per detainee, each year. and there are 39 detainees remaining. that is what this is all about today. for this modern body to support an isolated criminal justice system, in quotes, it's just plain wrong. and i would hope that the votes are here, finally, to change it. i just wanted to say that because this is an aberration
on the united states of america. it is not what we represent. we don't support this kind of isolation in criminal justice and i'm grateful for the people that have the courage to come here and in many different ways say the same thing. that is all my comment. thank you. >> senator feinstein -- >> thank you, mister chairman. let me set the stage as i see it. 20 years after 9/11, the taliban are back in charge. does everybody agree with that on the panel? of in afghanistan, the taliban are now in charge of afghanistan? everybody agrees. five of the people in the taliban government are former gitmo detainees. the deputy minister of defense, the acting minister of borders and travel affairs, the acting intelligence director, the acting administer of information and culture, the
new governor of the southeastern province of hosts, are all former get more detainees and we are talking about releasing people. 229 of the 729 people released from gitmo have gone back to the fight. . this is nuts. one thing i can say about the 39 that are at gitmo, not one of them has attacked the united states. and if i have my way none of them ever will. bringing them to justice, i understand that very, very much. but here's what i have been fighting for 20 years now almost. i don't want anybody to be tortured by american military personnel or government officials or contractors because that makes the war hard tore win -- harder to win that's why many of my colleagues we hold those accountable who lost their way. but having said that, i've never
accepted the false choice of try them or release them. we're at war, general baker. we're not find -- fighting a crime. this is not a criminal enterprise. this is a war. and we're applying the law of war system that correct? -- war. is that correct? >> my sphere is overseeing the military defense function. policy decisions are -- >> lets me ask you this. as a military lawyer, does the united states have the able to hold a member of the enemy forces as an enemy combatant turned laws of war? >> in certain circumstances, yes, sir. but that's not what we're talking about here today. >> everybody at gitmo went through a combat status review tribunal hearing, is that correct? >> yes, sir -- >> no, what we are talking about here is that these people have been determined by a process consistent with the supreme court determination that they
are in fact, part of the enemy force. there was a hearing held for all 39 combat status review tribunal, under the law of war required by the supreme court and everybody was found to be a part of the enemy forces. is that true general bakeer? >> but what we're talk about today? >> my question is simple the people at gitmo have they been determined to be enemy force? >> not in my opinion -- well that's your opinion. i admire the hell out of you. you're doing a fine job. but we're here as policy makes to make a decision about what we should do i think it's absurd to criminalize a war. you can hold somebody until they die as an enemy combatant if it's unsafe to release them if the war is not over. does anybody doubt we have the ability today to kill somebody
who's part of al-qaeda if they're up to no good? can we kill them? mr. simpson, can we kill them? >> we can use deadly force under the 2000 -- >> we did it last week. what is it that question kill them but you can't capture them? no war has ever been conducted that way for a reason. the reason we never done war that way because it's stupid. we're not fight ago crime. we're fight ago war. i don't want to torture anybody. i want to give them due process consistent with being at war. and if necessary, wait to hold them as long as it taken to keep us safe or we believe that they're no long area threat. to the 39 at get know, i believe all of them are a threat if we can try them, great if we can't, let's hold them. this idea of closeing get know,
embraced it with president obama. here's the problem. i couldn't get the administration to believe of that if you moved them back to the united states indefinite detention would still be available. i don't care where you can house them. you can house them in illinois as long as you don't let them go if the circumstances under the lower war prevent them from being let go. we can never cross that bridge. there's not one member of the biden administration on this panel. and all of you are great americans. thank you for giving your opinions and your counsel to to the committee. but i find it stunning that not one member of the administration would come before this committee to talk about closing gitmo. >> thank you, senator gray hawaii >> senator whitehouse. >> thank you, chairman the torture program that was run by the c.i.a. has left a lasting stain.
i want to recognize while we're discussing it the work that germ rockefeller and chairman feinstein did on the intelligence committee, which was persistent in determined work against considerable executive opposition in both the bush and obama administrations. i want to also recognize the work the judiciary committee had. we had the committee in this committee with the f.b.i. interrogator who was extracted by the f.b.i. and the department of justice when the f.b.i. and department of justice got wind of the abuse that incompetent c.i.a. contractors were applying in an effort to extract intelligence when they were in fact interrupting successful
gathering by trained professionals i want to thanking the armed services committee under senator mccain who gave us on intelligence where eleven and -- levin and mccain sat and the judiciary considerable support, moral and political support for getting to the bomb of the torture program. what we're hearing that the torture program is inhibiting the detainees. i believe the bush administration itself released more than 500 gitmo detainees. so it's hard to say that this
was a seamless, successful project of identifying and collecting really dangerous people when the people behind that, the bush administration who set this up in the first place released more than 500 out of guantanamo. and now we're down to these last 39 and maybe our solution is like the man in the iron mask we put them in dungeons forever. and deidentify them and hope that they all go away. but that would be dramatically inconsistent with american values. my question to our two members in uniform is describe what symbolic significance guantanamo now has as a tool for our enemies and adversaryies?
>> thank you, senator whitehouse i think the best way to describe it to you, is a conversation i had with a seoul soldier when i was down there in guantanamo. i was down there in the middle of the night because i wanted to make sure that we treated the detainees proper limit we did not in enhanced interrogation techniques he said sir, why are we treating so well? they wouldn't treat us that way. and i said, soldier, you are exactly right. but if we treat them as they would treat us, we become them. and i would offer that we have surrendered our moral authority. >> i agree with everything that general leonard just said. there's one point that you raised that i would like to
address. and that's this smith that the f.b.i. engaged in these clean team statements. the fiba and c.i.a. were involved hand and fist in these all intelligence gathers during these meetings at guantanamo bay. and we're hiding off of that behind the secrecy of classified information. >> i think what the key problem here is ms. justin described it is this continuing effort to keep this horrible secret is interfering with our ability to process these cases because we don't want the information to come out and in return for hiding the horrible secret, we have to cut deals with the the the the -- the detainees. what would that do in terms of speeding things up and allowing greater clarity? >> thank you, senator. in the case of my client
mr. khan, we were able to negotiate a guilty plea whereby he agreed to enter his plea that provided the clarity and the mode come of -- modicum of closure. so in that respect through negotiate ago guilty plea we were able to assure a clarity and closure for the victims. in terms of his torture, it was years of negotiations with the government. you know, at -- proceedings his sentencing to ebb able him to give a sworn statement to describe what he was subjected to at the hands of the c.i.a. and for him that was very important. and for the country it's very important to have the measure of accountability that that can bring about >> mr. chairman. i'm over my time. but want to thank you for holding to this hearing and for the attention that you're girlfriend giving to the department of justice. a lot of this began as you know
with completely inappropriate opinions offered by the offices of legal counsel. how do we know they're inappropriate, the department of justice itself under the same administration disavowed them. and that was in some respect the original sin. and i don't think we've yet solved the problems that keep that original sin from repeating itself and were in active conversation with that as you know. thank you for your leadership to make sure that the department of justice doesn't get abused like that again. >> i don't know if i'll be there eight years from now maybe somebody else can take on that responsibility. but eight years ago we raised this question. and having closed guantanamo that the point i think we'd be better off as a nation. senator cornyn? >> thank you, mr. chairman. obviously, if this were easy for
presidents, 20 years, we would have figured this out. but what was unprecedented was a terrorist attack that occurred on our soil that took the lives of 3,000 americans. and the american people demand a response. and the american people demanded that we stop future terrorist attacks. but i think part of the -- part and parcel of the confusion here is we industrial people argueing that this is a -- this should be subject to the usual rules in the criminal trial. and for obvious reasons that's not possible for many of them. don't take my word for it. that's what the obama commission agreed to in 2010. can you talk about what we -- we all agree that the rule of law should apply here.
but can you talk about why the rule of law applies differently to a noncitizen captured in the battlefield during during a war? >> absolutely, thank you senator cornyn. the supreme court has held that in an ongoing conflict, the united states can hold enemy combatants for the duration of the conflict. there are debates about the war on the battlefield in afghanistan having come to an end with our withdrawal, does that change things? the answer clearly is no. mark milley and general mckenzie both testified here in the senate less than two months ago that the war on terror continues. and our enemies believe the war on terror continues. they continue to plot tax -- attacks against us and our allies around the globe. the war continues and therefore the ability to detain continues. as senator graham correctly
pointed out, if we have the ability to kill an enemy on the battlefield, is it not more humane to capture them and detain them even though that may be indefinite? how can it be that we have the authority in an ongoing conflict to kill an enemy, but not detain them for any amount of time? it simply does not make sense. we have to assess the con text of whether we are going to be able to detain them for a long time. the plurality of the view of the supreme court. >> what i'm trying to understand is what is being asked for when people say they want to close guantanamo. in terms of the outcome for the families who lost loved ones on 9/11. because i heard mr. stinson talk
about the difficulties of prosecuting these individuals in a court of law, assuming you chose to do that, could do that, even though clearly the law allows indefinite detention for the duration of hostilities. it seems to me there are insurmountable problems with trying to try these detainees in an article three court. can you explain your thinking about that and also, would simply an acquittal, letting these detainees go, avoid any sort of consequences for their terrorist acts? would that be justice in your opinion? >> >> the argument about closing guantanamo, among the moral arguments, is that if you change the zip code and move them to
the united states or elsewhere, it eliminates the original sin, quote unquote. as senator graham pointed out, if you don't deal legislatively with the issue of whether they can be detained under law in the united states, you do not change anything but the zip code. it is clear that our enemy is on the march. they are clearly in power in afghanistan. if you change the zip code and nothing more and prosecute those you can in court, our enemies will simply turn their ire and proxy to the new zip code. to close guantanamo in a responsible way, you have to deal with the fact that we are at war and that longform detention is the guiding principle. if you can prosecute somebody who can be prosecuted, do that and transfer the remaining if you can get adequate security assurances from the receiving
country. we have not gotten the best security assurances from some of the countries where we sent detainees. that is the conundrum. >> thank you, senator cornyn. senator blumenthal? >> thank you mr. chairman. thank you for holding this hearing. i want to thank you for being here today. sharing your really powerful testimony about your personal experience and how the 9/11 families for basic justice and accountability, as you say, i have worked with a number of the 9/11 families, you make reference to one of them in your testimony who is from connecticut. connecticut was particularly affected because we are close to new york and many of our family members were there, as was your brother.
i have been so deeply moved and impressed by the efforts of 9/11 families to seek the truth about what happened on that day. as you put it, to seek answers to the questions you have raised. a number of the families have sued saudi arabia, as you know. the congress in a very bipartisan way, senator cornyn and i have helped to lead efforts to enable those families to seek their justice. you have done it very heroically through peaceful tomorrow. i was struck by the reference in your testimony to the concealment, in effect, through state secrets privilege, through classification of information that really belongs in the public realm, and this point has been a continuing one i have
tried to make. i wonder if you could elaborate on what kind of answers you are seeking and how the over classification and may be the unnecessary, sometimes irresponsible use of state secrets privilege has contributed to the concealment that is really aggravated the injustice to your family. >> thank you for the question. i want to start by saying that the common ground i have been hearing so far, i have been listening very carefully, is adherence to the rule of law. the common ground i have been hearing about the rule of law is that the military commission -- the rules for military commissions allow for pretrial agreements. one way to get to many of the answers we are seeking and one way to get to information would be a pretrial agreement not where people are released, but a
stipulation of facts to actually what occurred and perhaps the ability of family members to ask questions. could that be written into a pretrial agreement so we could have questions answered? the defendants would have to admit to what exactly happened or what their role was in the attacks. i think there's a lot of large, complex questions before this committee, but i also think there is a simple solution for the 9/11 case and that would be pretrial agreements, understanding secrets that are long hidden and gaining information. >> i think that point is so powerful. any of us who have been involved in trials or litigation or law enforcement know that one of the purposes of a trial, of any legal proceeding, is to get to the truth. to get to the truth of what happened in any kind of action
that may give rise to legal responsibility. what you are asking for is really one of the core functions of the rule of law. to seek answers about what happened and who was responsible for it without the overlay of government censorship, in effect. that kind of pretrial agreement, as you have said, would be a way to do it. do you think that that kind of -- information or answers would be a source of relief to the families? >> it is hard to imagine what the source of relief will be at this moment in time. but i would imagine feeling that i did right by my brother, i would imagine that there would be some resolution for my mother and father and for my children, and importantly, that there
would be some sense of ending and resolution for this country, which i really believe we need. >> you spoke to your dad before you came here. >> always an interesting conversation. >> tell me about what he said. >> my family is very exemplar of what most families in this country are about. we have differing opinions. lots of different viewpoints. some are quite loud. but this is who we are. this is what this country is. what we did agree on is there is a better way. there is a better way to get to some sense of resolution and it has gone on too long. we all agree on that here in this hearing as well. >> i was struck by your reference to your family as a divided one between democrats and republicans, and the reference to feeling at home here because we are divided, too. but i wish we were a little more like your family rather than
what we sometimes are. >> i won the family lotto. i come from the greatest family in the world. >> thank you senator blumenthal. senator tillis. >> thank you for being here. generals, thank you for your service. ms. justin, what crimes did mr. con plead guilty to? >> thank you you, senator. he pled guilty to several law of war crimes including murder, spying, conspiracy. >> i was the person in the senate armed services committee that asked general milley and general mckenzie if the war on terror was over and they both gave a categorical no as an answer. it was either that hearing or a subsequent hearing we assess to that with the precipitous withdrawal from afghanistan, the united states is likely to suffer an attack from isis-k
over the next six to 12 months, either on the homeland or against u.s. assets worldwide. al qaeda probably following behind them, between one to two years. there is a real serious threat to future detainees, and i happen to agree with senator graham, now there is a great incentive to simply kill them on the battlefield, not detain them . that seems like a perverse incentive. i think you mentioned when you were in the bush administration, you were tasked with looking at possible closure of guantanamo bay. what was the ultimate conclusion? >> thank you for the question. the hearing -- the study is classified, but i categorized it in my resting -- my written testimony, it fell into four categories. number one, it can be done.
the categories are legal, logistical, political, and diplomatic. each one you have to work on simultaneously. now with 39 people, one plane load would do it if you take them together to one place. the legal part you have heard several of my colleagues talk about, some of the conundrums and the difficult aspects, especially if you brought them to the united states. many of those answers have not been put forth. political is tough. that has been the long pole in the tent as far as i'm concerned. the table was set back in the obama administration to get it done. people were for closing it until they were against it when it turned out -- >> isn't it also true the table is set the same way? the president has the authority to do it and there is no way that those of us who would oppose closing it could stop it here in congress? >> as i detailed in my written testimony, things have changed
somewhat. since 2009, this body and the other body across the hill have put forth into law certain notification, other requirements before you transfer somebody off the island. there are spending limitations, etc.. those would have to be adhered to. but again, it has always been the prerogative of the president, whether it is president bush or any president, to close guantanamo in a responsible way. but congress plays a part in that and would have to join in. >> i'm wondering when we talk about a responsible transfer to another jurisdiction. the are not being particularly successful with doing that. isn't that kind of a global acknowledgment that on the one hand we say we are suffering reputational damage having gitmo open, but the fact we cannot find other jurisdictions to relocate them almost seems like a de facto approval of this.
the worst option except for all the other options we tried to pursue. am i wrong about that? >> i think you are right in the sense that we cannot get the right security assurances. there are detainees currently at guantanamo designated for transfer, but we cannot get countries to take them and give us assurances they will make sure they don't return to the fight. given that we know 30% roughly have either returned to or are expected to return -- >> five are actually in the taliban administration. >> one point on that, those detainees were actually transferred in violation of the congressional -- they were transferred in violation of the law. we have talked a lot about the reputational effects of gitmo and there is no question there have been reputational effects. but other things have also had reputational effects.
the way we have handled our withdrawal from afghanistan. the abandoning of our afghan allies who fought alongside us. those have had massive reputational effects today in the ongoing ungoverned space, that battlefield. you can be sure our adversaries are using those facts against us today also in recruitment efforts. >> thank you. >> senator, could i add something to my answer you asked me about earlier? while he pled to various serious crimes, it is important to note that he took responsibility for his actions and has been cooperating with the united states of america for over a decade and has done everything they asked in assistance of investigations and prosecutions of folks that have been charged with terrorism. >> i think that is a fair point in representing your client, but the fact of the matter is he is responsible for murder and pled to those crimes. we are not talking about potentially innocent people of the 39 down there. we are talking about people who
have done great damage to human life engaged in the battlefield and we cannot forget that that is the nature of the people that are there. while we have to be very careful -- and if guantanamo bay is closed, it has to be done in a responsible way. four administrations have not figured out yet. -- figured it out yet. >> i think all of the witnesses, and especially i would like to thank ms. kelly for your years of commitment to finding justice for your family and the other 9/11 families. i look at the numbers. it is not that there are 39 people who have been charged. you have 39 who remain at guantanamo. 13 have been approved for transfer. 14 continue to be held without charge. we have not even managed to charge these people in decades.
what we are left with our 12 who are currently in the military commission system, which the witnesses have testified does not work. out of the three who remain at guantanamo, 27 should be transferred. 780 men were detained since january 11. 532 were released president bush. 190 and -- 197 were released during the obama administration. we have 12 people who are in the commission system costing the american taxpayers almost $14 million per detainee per year compared to about $78,000 per year for prisoners in a super max prison in the united states. i do not see how you can escape the conclusion there has got to be a better way. i know that president bush
wanted to close guantanamo bay. we have had different administrations wanting to do that. we talk about responsibly closing guantanamo and one of the suggestions is that we pursue plea agreements. so i have a question for the general. would -- be an alternative? >> thank you for your question, senator. i do not represent any of the 12 men charged. i want to clarify that i do not speak for any of the 12 that are charged. they have their own defense counsel. to answer your question, could a plea agreement resolve these cases, yes. >> could you talk about the time that would be needed to reach a possible plea agreement versus the time that would be needed to complete the military commissions proceedings?
>> i am sorry to laugh, but that is a great question because we do not know how long it is going to take to finish these cases. a lot of focus is on when are the trials going to be over. that is just stage one. there is an appellate process, too. you can add 15 to 20 years. ms. jestin is probably in a better position to answer how quickly you could get a plea agreement. >> it really is something that is possible to be accomplished if there is a will to do it. in our case, the military prosecutor with whom we worked was a department of justice national security prosecutor who had a lot of experience in article three courts prosecuting terrorists. one thing we have heard a lot about during this hearing is
federal court prosecution of people charged with terrorism crimes. i would like to note for the record that since 9/11, almost 1000 cases have been indicted in the federal courts. these prosecutors are experienced and they know how to handle these cases. it is a very effective system. it is a system that is in conformance with the constitution. the military commission system, if there is a will to accomplish this, i would recommend to the administration that they evolve doj -- involve doj and get prosecutors to negotiate these positions. it will move more quickly. but the bottom line is if there is a will this can be done and it can be done quickly, there has to be the will. >> what you are describing is the better way. by the way, is there anything that prohibits the government or defense counsel from reaching a
>> let me start if i could with a question for mr. stimson and mr. jaffer. i was rereading supreme court cases regarding guantanamo bay. in the 2007 case, the court noted that guantanamo bay has a unique status, jurisdictional status in american law. the court also noted when you move enemy alien combatants to american soil, to territory that is indisputably part of the sovereign territory of the united states, constitutional rights increase. there is a long line of cases dealing with this. can i ask you for your review? what are the consequences of closing guantanamo bay and
moving enemy combatants to the united states? the supreme court found guantanamo itself, the presence of it does confers certain rights on them. but moving them to the united states where there is no need to have a functional balancing test, it is not a halfway u.s. territory, halfway not. if you moved into this country, what with the effect to be unconstitutional rights, particularly if you involve them in traditional court proceedings in the criminal justice system? both of you can answer, but go ahead. >> that is a great question. we don't know the exact answer. what we do know, as you have described, as there is likely to be significantly more rights if they were brought here then being held at guantanamo bay because of the unique status of guantanamo bay even in giving
them the limited right to habeas. it is highly likely the u.s. government were to voluntarily bring these individuals to the united states, even for limited purposes, a trial or detention, they are going to get rights they would not have otherwise had at guantanamo bay. the question is what is the scope and how broad? does the fourth amendment attach? the fit amendment? how much? what context? what about the right to confront witnesses? remember, as mr. stimson described, there is evidence on the battlefield. there is no chain of custody. not the usual things you would need in a federal trial or even a commissions trial or other alternate procedure that has some additional constitutional protection. that is problematic about bringing these detainees to the united states at this point in the ballgame. >> the only thing i would add is, you recall since you waited
through the decision handed down in 2008 was the whole discussion by justice kennedy on dish ore versus defect of jurisdiction. there is no doubt once they are here on terra firma that anyone will challenge all sorts of other aspects to their law of war detention including bringing suits against people in their personal capacity. i don't think anyone wants to see those types of things happen. on less -- unless and until this body and the body across the hill came together and pass legislation to cabin the rights they would have if they were brought to the united states and reaffirm the fact they are in detention and that is the applicable law only, is really an open question as to whether the rights would accrue to them.
>> unless congress acted, there would be at the very least an argument to be made that were detainees moved to united states soil, we could be looking at all kinds of new legal rights and legal proceedings, your point about sorts -- tort suits they could bring. we could be looking at a whole different set of legal rights and outcomes that are currently not even imaginable at gitmo. let me ask you this. professor jaffer, you testified on constitution, civil rights, and civil liberties, other concerns of civilian trials included the physical security of civilians living in the area, the judges and staff working on those cases, and the jurors selected for trial. those concerns, is that something we should still be concerned about in your view? >> absolutely, and it is not just my view.
it was majority leader schumer's view at the time the obama administration was interested and bringing detainees to new york to try them. it was hotly debated in public. the administration decided not to do that. these concerns about the security of individuals if detainees are brought here, not of the detainees themselves, but of those that support them and their supporters in the united states, could be hugely problematic. homegrown violent extremists were inspired by al qaeda and isis. imagine if we bring their inspiration to the united states to try them here. that could be problematic. >> thank you to the witnesses were being here and thank you for waiting for me, mr. chairman. >> thank you mr. chairman and thank you to you all. i have been monitoring and listening to this hearing online. it is so interesting to me to
get your different perspectives. i really appreciate that. a couple of times there's been mention of president's efforts to close this. as i was sitting there thinking through this and listening to your responses, my question is simply this. with the 39 detainees that are left there, since that effort was made to close it, what has changed in regard to the danger these 39 individuals pose to the united states? what has changed that would say, yes, we can let these people go? we can do something different. >> well, senator, there is a process for reviewing the detainees of the obama administration set up by the periodic review board. at least 13 of these have been
determined qualified for transfer. the issue is when you transfer them you want to ensure they are properly secure wherever they go . knowing that a third of these detainees have returned to or are respected to have returned to the fight, we want to make sure these particular ones are held under proper security assurances. all 39 have been determined by the obama administration to be continue to be held or tried by military commission. >> so nothing has made them less dangerous. i think that gets lost in this discussion. there is nothing that says they have been rehabilitated. but there is evidence that shows many go back. the withdrawal from afghanistan and then the taliban takeover, how does that affect these detainees and what does that do to, if they were released, their probable future?
>> it is hard to understate the ungoverned state in afghanistan where terrorists returning to the fight are encouraging others to come there. you have al qaeda returning there, you have the taliban government, the same government that supported and hosted osama bin laden, you have isis-k, you have a detrimental and problematic mix of terrorists in the region and additional inspiration coming from the way in which we withdrew from afghanistan. the fact we abandoned our allies, that we have not brought out the siv's and the like that we made commitments to. >> so the environment that we have created after the afghanistan withdrawal actually encourages activity from terrorists. >> absolutely. >> let me ask you this.
the countries that have accepted transfer of some of these in the past, and mr. stimson, i'm going to direct this to you. have they been able to ensure that these individuals do not return to terrorist activity, and what kind of agreement did we have with them to get that insurance that they won't go back to creating these attacks? >> senator, to my recollection, we have transferred detainees or released detainees through different processes to 39 different countries. the big three populations are the afghans, the saudi's, and the eumenes -- yemenis. in each of those transfers, except for the afghans, we negotiated on a detainee by detainee basis with the receiving country and sought assurances they would mitigate
the threat that that particular detainee would post. i think we have had -- >> it is important to note this is done on an individual basis. >> it is. >> one at a time. >> we were doing that in the bush administration, the obama administration as well. each one of those transfer negotiations is a laborious, sometimes years-long process. some countries are very frank with us saying, you know, we can only detain this person for x period of time and then we cannot assure you they will be held under our domestic law. to professor jaffer's point, the dni under two administrations have tracked the number of detainees who were confirmed to have reengaged and who were suspected of re-engaging. i can tell you as a former
prosecutor, the number has got to be higher. you only know what you know and you don't know what you don't know. >> so each country should agree to take these detainees -- country that agrees to take these detainees, they make a best effort and they are not always successful in that effort, and the data you have shows that, correct? >> yes. >> so releasing these, just like the 5000 that got released from bagram airfield, makes the world more contentious and more dangerous and enables the taliban or other terrorist organizations to fill their ranks, correct? >> yes, the purpose of detention is to shorten the war and deprive the opposed enemy forces of fighters. by resupplying them, the war gets worse. >> and the war continues. >> yes.
>> yield back. >> i understand your brother bill was killed in the north tower on september 11, ms. kelly. i am so sorry for your loss. thank you for taking the time to appear before us today. i understand in memory of your brother you spent the last 20 years trying to get justice for him and all those lost on 911. can you speak about your experience having watched over a dozen military commission proceedings, whether justice is being done and what is the best thing we can do to ensure justice for bill and those lost on 9/11? >> thank you for the question. the arraignment of the 911 accused happened in 2012. family members were chosen by
lottery to travel to guantanamo for the hearings. our organization applied for ngo observer status so we could send one family member to each hearing to closely observe what was happening. through our time there, and we are now in the high 30's, maybe even 40's, how many hearings have occurred, we have watched delay after delay after delay. covid delay and more. in 20 we began exploring seriously what a pretrial agreement may mean. we talked to legal advisors, to federal prosecutors, to people with legal expertise. it seems that this stage we are not really closer. at this moment in time, pretrial agreement could make things happen and could bring some resolution. >> thank you.
brigadier general baker, thank you for your 32 years of service in the u.s. marine corps. can you speak to how concluding the military commission proceedings can be done in a way that protects the security of the american people, and do you agree with president bush's assessment that the detention facility became a propaganda tool for our enemies? >> thank you for the question, and thank you for thanking me for my service. the negotiations of the pretrial agreements that have been talked about would need to be done in good faith by all the parties, and there has been a demonstration that that can be done. not doing that seems to be the worst possible option.
i do want to talk a bit about the delay you asked ms. kelly about. there are three aspects that are causing the delay in these proceedings. the first is the death penalty. the death penalty is keeping these cases going on with what seems to be -- in perpetuity. the second is intrusions. there is a history of government intrusions in the attorney-client relationship. the third is the discovery. the over classification and hiding of information we can read about in the newspapers has put these cases -- really kind of stopped them in their tracks. we can overcome that through negotiated plea agreements. >> in your testimony, you described several violations of
attorney-client privilege including the seizure of documents marked as privileged, the placement of hidden recording devices in rooms where detainees conferred with attorneys. what effect did these attempts to violate attorney-client privilege have on your staff and other attorneys serving as counsel for the detainees? >> these intrusions have set the hearings back literally years at a time. there was a hearing last month, a, classified hearing that looked into intrusions that occurred in 2017. it is delaying the procedures and it is -- we are hiding secrets we read about in the newspaper. >> last question, major general, thank you for your 37 years of service, my staff just told me, since the bush administration,
our presidents have expressed their intent to close the detention facility at guantanamo bay. with president biden being the latest to state his intent to do so. yet as we just discussed, despite the efforts of multiple administrations, the facility remains open. can you talk to us about the steps that need to occur to close this facility and how we as a congress connect to ensure it is closed in a way that maintains the security of the american people? >> i will be brief. first, put somebody in charge with the authorities to work with all the various government agencies who have actually done a pretty credible job. there needs to be somebody that can do this. the second part, and obviously general baker and ms. jestin have discussed this, is bringing in the federal courts.
negotiating plea agreements. i am not an attorney, but i have been told those federal courts can still operate on guantanamo bay soil through video teleconferences and things of this nature once we have taken the death penalty off the table. it seems to me the desired outcome, particularly for the families of individuals like ms. kelly, is to get closure. i would offer that once we have convictions and sentences -- and by the way, i have no empathy for those individuals that committed these horrendous crimes. if they are locked up for the rest of their lives, so be it, but let's give the families closure and let's demonstrate to the rest of the world that we use the loss to hold our criminals accountable. thank you. >> thank you all. i wish i had more time.
i would ask the other witnesses questions. for those that i spoke to, thank you for your clear and measured responses. this is not easy, especially for you ms. kelly, but for everyone. i appreciate that you have thought this through. thank you. senator cruz. >> thank you madam chair. for more than a decade there has been a focus by barack obama and joe biden and their administrations, a focus that i find as inexplicable as it has been catastrophic on freeing terrorists from american detention. in 2009, the obama-biden foreign policy team decided to close the detention facility at camp buka in iraq. by 2014, as isis was forming, it became clear that over a dozen
of the group's top leaders had been freed from cap buka. those include the founder of al-nusra front. having learned nothing, the same team repeated the same mistakes, this time with the bagram prison in afghanistan. as part of the administration's catastrophic withdrawal. the images americans remember of that catastrophe are of chaos and carnage. over 100,000 afghans, many of them unvetted loaded onto airplanes to be deposited into the united states. taliban terrorists overrunning u.s. and afghan army positions, seizing unaccountable numbers of advanced weapons and technology.
and parading them for a global audience. and of course the august 26 terrorist attack on the kabul airport in which an isis-k bomber killed 13 american service members. what is less well known is that that bomber had been imprisoned in the bagram prison, which until that summer had been under american control. the biden administration conscious decision, again, inexplicably, to abandon that critical position, and with it, the high-security prisoners housed there. having still apparently learned nothing, releasing terrorists, seeing them killing americans, releasing more terrorists, seeing them killing more americans, the biden administration is talking about doing it again. now they are talking about
closing the facility at guantanamo bay. i think before that is even contemplated, we should have some sense of the told that these catastrophic decisions have had. for instance, the washington post, hardly a right-wing organ, has reported, quote, at least 12 detainees released from the detention camp at guantanamo bay, cuba have launched attacks against u.s. or allied forces in afghanistan killing about a half dozen americans. so you have terrorists freda camp buka -- freed at camp bucca, americans murdered. terrorists freed from bagram, americans murdered. now the biden administration wants to free more terrorists and we know to an absolute
metaphysical certainty the result of that will be more americans murdered. i want to ask the witnesses, i recognize the biden administration declines to send a government official charged with explaining the administration's policy, but let me ask all the witnesses assembled here, does anyone know a full account of the number of terrorists who were released from camp bucca that went on to fight for isis or the al-nusra front? so we don't have that information? how about this? does anyone know an accurate count of the number of u.s. servicemen and women that have been murdered by individuals we set free from camp bucca, from bagram, or from guantanamo?
so we don't know how many servicemen and women have been murdered, but yet the biden administration is preparing to go down this road once again, and it is worth noting that the terrorists we find returning to the battlefield are just some of the ones we have released. there is good reason to suspect they are not the only ones who have returned to violence and terrorism. before we free more terrorists, we should get to know where the past ones have gone and where future ones are likely to go. professor, is there a rough estimate of where the terrorists freed from u.s.-run facilities have gone, and to what extent and what level are those numbers tracked? >> senator cruz, the answer is that with respect to the terrorists we have transferred to other countries, we have security assurances for some period of time. those assurances are not
forever. they are negotiated typically on a one-to-one basis. but those we have a sense of. but once they go out from security assurances, we don't know where they are. others we have released, we don't know where everyone ends up. what we do know is that 33%, 32% , have either returned to the fight or are suspected of it. we know that and that is a real problem. you think about the 700 odd people released from gitmo, 229 have either returned to the fight or are suspected to return to the fight somewhere on the globe. >> of the 39 detainees that remain, roughly 20 are from nations without a fully functioning government. 14 are from yemen, where enormous swaths of the country are ruled by terrorists. to what extent are such
countries able to track and secure terrorists and prevent them from murdering americans? >> they are not able, which is why we cannot transfer to those countries. >> thank you. >> thank you senator. the director of national >> thank you senator. the director of national intelligence -- for transfers were put in place, confirmed of re-engaging in terrorist activities. that is 10 persons total. two of whom are now deceased. 5%, not 30%. even that number is misleading. it only takes 51% likelihood a detainee is engaged in activity to count them as confirmed. the claim there is 30%, i have third it attributed to dni, which is inaccurate. the fact there is a 30%
recidivism rate among guantanamo detainees is misleading. that includes individuals that are merely suspected of engaging in terrorist activities, including based on a single source or hearsay. it includes transfers that occur before the current security arrangements used today were in place. the most recent dni report showed 729 detainees have been transferred out of guantanamo since its opening. according to dni, 125 were confirmed of re-engaging in terrorist activities, but the vast majority were transferred during the bush administration before today's processes were put in place. i would like to say a word about the taliban in afghanistan. if i recall correctly, negotiations with the taliban for the final withdrawal of american troops began under the previous administration. president trump was negotiating with the taliban and reached an agreement which would protect the americans if forces left in
afghanistan until a certain date . it was president biden who inherited that negotiation. say there is no plan in place is to misstate the situation as it occurred. if i remember correctly, they were going through a process of discussing the evacuation of americans and american troops when the government of afghanistan left the premises. their departure created an emergency situation. what the biden administration did do was execute a plan for evacuating 130,000 evacuees from afghanistan in a very brief period of time. to put that in comparison, the total number of evacuees in vietnam, 50,000. president biden evacuated some 130,000. that i hope will clear up the record. i want to thank the entire panel
for a good hearing, bringing out major issues most americans would ask about in the course of considering the same question. i sincerely hope they do. my feelings on guantanamo are well known. particular thanks to ms. kelly. appreciate you coming. you speak for a lot of people who unfortunately were victimized by that horrible day we will never forget. i hope we can bring this to closure for you and your family and all others likely situated. i'm going to do everything in my power as chairman of the committee to put this dark chapter behind us, but with some truth and some light as we bring it to conclusion. thank you all for joining us today. the committee stands adjourned.