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Tained by the Department of Defense As Unlawful Enemy Combatants S. HRG. 110–230 LEGAL ISSUES REGARDING INDIVIDUALS DE- TAINED BY THE DEPARTMENT OF DEFENSE AS UNLAWFUL ENEMY COMBATANTS HEARING BEFORE THE COMMITTEE ON ARMED SERVICES UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION APRIL 26, 2007 Printed for the use of the Committee on Armed Services ( U.S. GOVERNMENT PRINTING OFFICE 39–988 PDF WASHINGTON : 2008 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 VerDate 0ct 09 2002 14:02 Jan 14, 2008 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 C:\DOCS\39988.TXT SARMSER2 PsN: JUNEB COMMITTEE ON ARMED SERVICES CARL LEVIN, Michigan, Chairman EDWARD M. KENNEDY, Massachusetts JOHN MCCAIN, Arizona ROBERT C. BYRD, West Virginia JOHN WARNER, Virginia, JOSEPH I. LIEBERMAN, Connecticut JAMES M. INHOFE, Oklahoma JACK REED, Rhode Island JEFF SESSIONS, Alabama DANIEL K. AKAKA, Hawaii SUSAN M. COLLINS, Maine BILL NELSON, Florida JOHN ENSIGN, Nevada E. BENJAMIN NELSON, Nebraska SAXBY CHAMBLISS, Georgia EVAN BAYH, Indiana LINDSEY O. GRAHAM, South Carolina HILLARY RODHAM CLINTON, New York ELIZABETH DOLE, North Carolina MARK L. PRYOR, Arkansas JOHN CORNYN, Texas JIM WEBB, Virginia JOHN THUNE, South Dakota CLAIRE McCASKILL, Missouri MEL MARTINEZ, Florida RICHARD D. DEBOBES, Staff Director MICHAEL V. KOSTIW, Replublican Staff Director (II) VerDate 0ct 09 2002 14:02 Jan 14, 2008 Jkt 000000 PO 00000 Frm 00002 Fmt 0486 Sfmt 0486 C:\DOCS\39988.TXT SARMSER2 PsN: JUNEB C O N T E N T S CHRONOLOGICAL LIST OF WITNESSES LEGAL ISSUES REGARDING INDIVIDUALS DETAINED BY THE DEPARTMENT OF DEFENSE AS UNLAWFUL ENEMY COMBATANTS APRIL 26, 2007 Page Leahy, Hon. Patrick J., A Senator from the State of VERMONT ....................... 6 Dell’Orto, Daniel J., Principal Deputy General Counsel, Department of De- fense ...................................................................................................................... 17 Hutson, RADM John D., USN (Ret.), Former Judge Advocate General of the Navy ................................................................................................................ 22 Smith, Jeffrey H., Former General Counsel of the Central Intelligence Agen- cy ........................................................................................................................... 29 Katyal, Neal K., Professor of Law, Georgetown University Law Center ............ 37 Denbeaux, Mark P., Professor of Law, Seton Hall Law School ........................... 49 Rivkin, David B., Jr., Partner, Law Firm of Baker Hostetler ............................. 64 Annex A .................................................................................................................... 156 Annex B .................................................................................................................... 157 Annex C .................................................................................................................... 187 Annex D .................................................................................................................... 188 Annex E .................................................................................................................... 189 Annex F .................................................................................................................... 192 Annex G .................................................................................................................... 193 Annex H .................................................................................................................... 197 (III) VerDate 0ct 09 2002 14:02 Jan 14, 2008 Jkt 000000 PO 00000 Frm 00003 Fmt 0486 Sfmt 0486 C:\DOCS\39988.TXT SARMSER2 PsN: JUNEB VerDate 0ct 09 2002 14:02 Jan 14, 2008 Jkt 000000 PO 00000 Frm 00004 Fmt 0486 Sfmt 0486 C:\DOCS\39988.TXT SARMSER2 PsN: JUNEB LEGAL ISSUES REGARDING INDIVIDUALS DE- TAINED BY THE DEPARTMENT OF DEFENSE AS UNLAWFUL ENEMY COMBATANTS THURSDAY, APRIL 26, 2007 U.S. SENATE, COMMITTEE ON ARMED SERVICES, Washington, DC. The committee met, pursuant to notice, at 9:38 a.m. in room SH– 216, Hart Senate Office Building, Senator Carl Levin (chairman) presiding. Committee members present: Senators Levin, Lieberman, Reed, Akaka, Clinton, Pryor, McCaskill, Warner, Sessions, Collins, Chambliss, Cornyn, Thune, and Martinez. Other Senators present: Senator Leahy. Committee staff members present: Richard D. DeBobes, staff di- rector; and Leah C. Brewer, nominations and hearings clerk. Majority staff members present: Peter K. Levine, general coun- sel; Michael J. McCord, professional staff member; and William G.P. Monahan, counsel. Minority staff members present: Michael V. Kostiw, Republican staff director; William M. Caniano, professional staff member; Derek J. Maurer, minority counsel; and David M. Morriss, minority counsel. Staff assistants present: David G. Collins, Fletcher L. Cork, and Jessica L. Kingston. Committee members’ assistants present: Jay Maroney, assistant to Senator Kennedy; Erik Raven, assistant to Senator Byrd; Fred- erick M. Downey and Vance Serchuk, assistants to Senator Lieberman; Elizabeth King, assistant to Senator Reed; Darcie Tokioka, assistant to Senator Akaka; Andrew Shapiro, assistant to Senator Clinton; M. Bradford Foley, assistant to Senator Pryor; Gordon I. Peterson, assistant to Senator Webb; Jason D. Rauch, as- sistant to Senator McCaskill; Sandra Luff, assistant to Senator Warner; Todd Stiefler, assistant to Senator Sessions; Mark J. Win- ter, assistant to Senator Collins; Clyde A. Taylor IV, assistant to Senator Chambliss; Stuart C. Mallory, assistant to Senator Thune; and Brian W. Walsh, assistant to Senator Martinez. OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN Chairman LEVIN. Good morning, everybody. America’s standing in the world has taken a nosedive since the world embraced us after September 11. According to a recent poll conducted by the Program on International Policy Attitudes, 67 (1) VerDate 0ct 09 2002 14:02 Jan 14, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\39988.TXT SARMSER2 PsN: JUNEB 2 percent of the people surveyed across 25 countries disapprove of the U.S. handling of Guantanamo detainees. The program director explained that, ‘‘The thing that comes up repeatedly is not just anger about Iraq. The common theme is hypocrisy. The reaction tends to be, ‘You are a champion of a certain set of rules. Now you’re breaking your own rules.’ ’’ The Secretary of Defense recognized this problem last month, when he acknowledged that he had recommended closing Guanta- namo because there is a taint about it. America, at its best, is a beacon for human rights and human lib- erty, and that’s how we like to see ourselves. But much of the world sees us in a very different way when we fail to live up to the standards that we profess. For us, the symbol of American val- ues is the Statue of Liberty. For much of the world, it is that hor- rific photograph of a hooded prisoner at Abu Ghraib standing on a box, strung up with wires. It’s, no doubt, hard to care about due process for people like Khalid Sheikh Mohammed and Abu Zubaydah, but, as Senator Graham said at the time of our trip to Guantanamo to observe the tribunal for Khalid Sheikh Moham- med, ‘‘It’s not about them, it’s about us.’’ There are many reasons not to allow abuse of detainees or the use of coerced testimony. It’s morally wrong. It produces unreliable information. It violates domestic and international law. It under- mines the support we need in the world community to win the war against terrorism. It jeopardizes our own troops if they are cap- tured. But there is also this. People are less likely to believe what we say about our detainees if they’ve been abused. Even when an ad- mitted terrorist, like Khalid Sheikh Mohammad, confesses to the most heinous of terrorist acts, the world focuses far too much on how we treated him, and not nearly enough on what, by his own words, he did to us. In sum, when we fail to uphold our own values, we undermine our own security. The administration would like us to believe that the detainees’ allegations of abusive treatment are fabrications based on al Qaeda training manuals, but listen to what our own people at Guanta- namo were saying: In late 2002, the Federal Bureau of Investigation (FBI) personnel at Guantanamo objected to aggressive military interrogation techniques. Law enforcement personnel—our law enforcement personnel—questioned the legality of these techniques and told their own FBI leaders back in Washington, ‘‘You won’t believe it.’’ A Department of De- fense (DOD) investigation led by Lieutenant General Ran- dall Mark Schmidt, USAF, found that the use of these techniques constituted abusive treatment. Last September, this committee approved, on a bipartisan 15 to 9 vote, a bill that would have helped address the problems caused by our treatment of detainees by establishing new procedures for trying detainees consistent with the Supreme Court’s ruling in Hamdan versus Rumsfeld. However, this bill was never taken up by the full Senate. Instead, the administration persuaded a major- ity of Congress to: (1) narrow the accepted definitions of ‘‘cruel and VerDate 0ct 09 2002 14:02 Jan 14, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\39988.TXT SARMSER2 PsN: JUNEB 3 inhuman treatment’’; (2) authorize the administration to unilater- ally redefine its obligations
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