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Upholding the Principle of Habeas Corpus for Detainees

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Upholding the Principle of Habeas Corpus for Detainees i [H.A.S.C. No. 110–79] UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES COMMITTEE ON ARMED SERVICES HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION HEARING HELD JULY 26, 2007 U.S. GOVERNMENT PRINTING OFFICE 45–067 WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 HOUSE COMMITTEE ON ARMED SERVICES ONE HUNDRED TENTH CONGRESS IKE SKELTON, Missouri, Chairman JOHN SPRATT, South Carolina DUNCAN HUNTER, California SOLOMON P. ORTIZ, Texas JIM SAXTON, New Jersey GENE TAYLOR, Mississippi JOHN M. MCHUGH, New York NEIL ABERCROMBIE, Hawaii TERRY EVERETT, Alabama SILVESTRE REYES, Texas ROSCOE G. BARTLETT, Maryland VIC SNYDER, Arkansas HOWARD P. ‘‘BUCK’’ MCKEON, California ADAM SMITH, Washington MAC THORNBERRY, Texas LORETTA SANCHEZ, California WALTER B. JONES, North Carolina MIKE MCINTYRE, North Carolina ROBIN HAYES, North Carolina ELLEN O. TAUSCHER, California JO ANN DAVIS, Virginia ROBERT A. BRADY, Pennsylvania W. TODD AKIN, Missouri ROBERT ANDREWS, New Jersey J. RANDY FORBES, Virginia SUSAN A. DAVIS, California JEFF MILLER, Florida RICK LARSEN, Washington JOE WILSON, South Carolina JIM COOPER, Tennessee FRANK A. LOBIONDO, New Jersey JIM MARSHALL, Georgia TOM COLE, Oklahoma MADELEINE Z. BORDALLO, Guam ROB BISHOP, Utah MARK E. UDALL, Colorado MICHAEL TURNER, Ohio DAN BOREN, Oklahoma JOHN KLINE, Minnesota BRAD ELLSWORTH, Indiana CANDICE S. MILLER, Michigan NANCY BOYDA, Kansas PHIL GINGREY, Georgia PATRICK J. MURPHY, Pennsylvania MIKE ROGERS, Alabama HANK JOHNSON, Georgia TRENT FRANKS, Arizona CAROL SHEA-PORTER, New Hampshire BILL SHUSTER, Pennsylvania JOE COURTNEY, Connecticut THELMA DRAKE, Virginia DAVID LOEBSACK, Iowa CATHY MCMORRIS RODGERS, Washington KIRSTEN E. GILLIBRAND, New York K. MICHAEL CONAWAY, Texas JOE SESTAK, Pennsylvania GEOFF DAVIS, Kentucky GABRIELLE GIFFORDS, Arizona ELIJAH E. CUMMINGS, Maryland KENDRICK B. MEEK, Florida KATHY CASTOR, Florida ERIN C. CONATON, Staff Director PAUL OOSTBURG, Professional Staff Member ROGER ZAKHEIM, Professional Staff Member MARGEE MECKSTROTH, Staff Assistant (II) C O N T E N T S CHRONOLOGICAL LIST OF HEARINGS 2007 Page HEARING: Thursday, July 26, 2007, Upholding the Principle of Habeas Corpus for De- tainees ................................................................................................................... 1 APPENDIX: Thursday, July 26, 2007 .......................................................................................... 91 THURSDAY, JULY 26, 2007 UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES STATEMENTS PRESENTED BY MEMBERS OF CONGRESS Saxton, Hon. Jim, a Representative from New Jersey, Committee on Armed Services ................................................................................................................. 3 Skelton, Hon. Ike, a Representative from Missouri, Chairman, Committee on Armed Services ................................................................................................ 1 WITNESSES Abraham, Stephen E., Lieutenant Colonel, U.S. Army Reserve .......................... 13 Dell’Orto, Daniel J., Principal Deputy General Counsel, U.S. Department of Defense ............................................................................................................. 66 Katsas, Gregory G., Principal Deputy Associate Attorney General, U.S. De- partment of Justice .............................................................................................. 69 Keene, David A., Chairman, American Conservative Union and Co-Chair of the Constitution Project’s Liberty & Security Initiative ............................... 9 Oleskey, Stephen H., Partner, Wilmer Cutler Pickering Hale and Dorr LLP ... 6 Philbin, Patrick F., Former Associate Deputy Attorney General, U.S. Depart- ment of Justice ..................................................................................................... 11 APPENDIX PREPARED STATEMENTS: Abraham, Stephen E. ....................................................................................... 153 Dell’Orto, Daniel J. ........................................................................................... 176 Katsas, Gregory G. ........................................................................................... 180 Keene, David A. ................................................................................................ 115 Oleskey, Stephen H. ......................................................................................... 95 Philbin, Patrick F. ............................................................................................ 124 DOCUMENTS SUBMITTED FOR THE RECORD: Report on Guantanamo Detainees, A Profile of 517 Detainees through Analysis of Department of Defense Data .................................................... 193 CTC Report, An Assessment of 516 Combatant Status Review Tribunal (CSRT) Unclassified Summaries, 25 July 2007 .......................................... 221 Preliminary Response to the Pentagon Commissioned Report, by Mark Denbeaux and Joshua Denbeaux ................................................................. 228 Letter from Karen Mathis, President of the American Bar Association ...... 233 (III) IV Page DOCUMENTS SUBMITTED FOR THE RECORD—Continued Excerpts from transcript of June 10, 2007, Meet the Press interview with Colin Powell, and September 13, 2006, letter from Colin Powell to Senator John McCain ............................................................................... 235 Letters in support of restoration of habeas corpus ........................................ 239 Letter from LTC Stephen E. Abraham to Rear Admiral McGarrah, dated 10 December 2004 ......................................................................................... 267 WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: [There were no Questions submitted during the hearing.] QUESTIONS SUBMITTED BY MEMBERS POST HEARING: Mr. Skelton ....................................................................................................... 271 UPHOLDING THE PRINCIPLE OF HABEAS CORPUS FOR DETAINEES HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Thursday, July 26, 2007. The committee met, pursuant to call, at 9:05 a.m., in room 2118, Rayburn House Office Building, Hon. Ike Skelton (chairman of the committee) presiding. OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTA- TIVE FROM MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES The CHAIRMAN. Ladies and gentlemen, the committee will come to order. Today’s hearing is about upholding the principles of habeas cor- pus for detainees at Guantanamo Bay, Cuba. Many across the country and some in this hearing room may ask why Congress should bother restoring the constitutional right to challenge arbitrary detention to the men in Guantanamo (GTMO) when some of them are self-avowed terrorists. For our first panel today, we have four very distinguished attor- neys. Mr. Stephen Oleskey, please raise your hand. Mr. Oleskey, a partner at Wilmer Cutler Pickering Hale and Dorr, has represented six Bosnian Algerian men who have been de- tained at Guantanamo since 2002. Mr. Oleskey was awarded the 2007 American Bar Association Pro Bono Publico Award largely be- cause of his work on habeas matters. We thank you for being with us. Our next witness, Mr. David Keene, since 1984, has served as the chairman of the American Conservative Union as well as co- chair of the Constitution Project’s Liberty and Security Initiative. Mr. Keene. Next we welcome back to the committee Patrick Philbin, who served as associate deputy attorney general from 2003 to 2005 and is currently in private practice. And, finally, Mr. Stephen Abraham, lieutenant colonel in the United States Army Reserve, although he is testifying as a civilian today. He has firsthand knowledge of the Combatant Status Re- view Tribunals (CSRT) through his work with the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC). We welcome you, gentlemen. (1) 2 Back in 1945, an American country lawyer took to his feet in a courtroom in Germany and foreshadowed a couple of answers to the important question just put to us. Opening the Nuremberg trials of notorious Nazi prisoners, the country lawyer said that ‘‘civilization can afford no compromise with social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces survive.’’ Robert H. Jackson, chief counsel to the United States during the Nazi war trials, and later a Supreme Court Justice, could not have been more correct. We must prosecute those who are terrorists with the full force of the law, but we must also make sure that the con- victions stick. And, gentlemen, being a former prosecuting attorney, I know full well what it is to make a conviction stick. The certainty of convictions must go hand in hand with tough prosecutions. The problem that we face is that the Military Commissions Act (MCA), which the last Congress passed over my strenuous objec- tions, suffers from numerous flaws that I have outlined on previous occasions. Now, none of them is more severe than the stripping of habeas corpus from the detainees. In addition, earlier legislation established a questionable system of appellate review of the defec- tive Combatant Status Review Tribunals process. Already, the legal weaknesses in
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