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LEGAL ISSUES SURROUNDING THE MILITARY COMMISSIONS SYSTEM HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION JULY 8, 2009 Serial No. 111–18 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 50–861 PDF 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 VerDate Aug 31 2005 10:56 Sep 02, 2009 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\WORK\CONST\070809\50861.000 HJUD1 PsN: 50861 COMMITTEE ON THE JUDICIARY JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, JR., JERROLD NADLER, New York Wisconsin ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California MAXINE WATERS, California DARRELL E. ISSA, California WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia ROBERT WEXLER, Florida STEVE KING, Iowa STEVE COHEN, Tennessee TRENT FRANKS, Arizona HENRY C. ‘‘HANK’’ JOHNSON, JR., LOUIE GOHMERT, Texas Georgia JIM JORDAN, Ohio PEDRO PIERLUISI, Puerto Rico TED POE, Texas MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida BRAD SHERMAN, California GREGG HARPER, Mississippi TAMMY BALDWIN, Wisconsin CHARLES A. GONZALEZ, Texas ANTHONY D. WEINER, New York ADAM B. SCHIFF, California LINDA T. SA´ NCHEZ, California DEBBIE WASSERMAN SCHULTZ, Florida DANIEL MAFFEI, New York PERRY APELBAUM, Majority Staff Director and Chief Counsel SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES JERROLD NADLER, New York, Chairman MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, JR., ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia Wisconsin WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida HENRY C. ‘‘HANK’’ JOHNSON, JR., STEVE KING, Iowa Georgia TRENT FRANKS, Arizona TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas JOHN CONYERS, JR., Michigan JIM JORDAN, Ohio STEVE COHEN, Tennessee BRAD SHERMAN, California SHEILA JACKSON LEE, Texas DAVID LACHMANN, Chief of Staff PAUL B. TAYLOR, Minority Counsel (II) VerDate Aug 31 2005 10:56 Sep 02, 2009 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 0486 H:\WORK\CONST\070809\50861.000 HJUD1 PsN: 50861 C O N T E N T S JULY 8, 2009 Page OPENING STATEMENTS The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................................................................................. 1 The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Ranking Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................................................. 3 The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Ranking Member, Committee on the Judiciary ......................... 4 The Honorable William D. Delahunt, a Representative in Congress from the State of Massachusetts, and Member, Subcommittee on the Constitu- tion, Civil Rights, and Civil Liberties ................................................................ 6 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, Chairman, Committee on the Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 7 WITNESSES The Honorable Adam B. Schiff, a Representative in Congress from the State of California Oral Testimony ..................................................................................................... 10 Prepared Statement ............................................................................................. 12 Lieutenant Colonel Darrel J. Vandeveld, former prosecutor, Guantanamo Bay Military Commissions Oral Testimony ..................................................................................................... 16 Prepared Statement ............................................................................................. 18 Ms. Deborah N. Pearlstein, Associate Research Scholar, Woodrow Wilson School of Public and International Affairs, Princeton, NJ Oral Testimony ..................................................................................................... 23 Prepared Statement ............................................................................................. 26 Mr. Thomas Joscelyn, Senior Fellow, Foundation for Defense of Democracies, Washington, DC Oral Testimony ..................................................................................................... 42 Prepared Statement ............................................................................................. 45 Ms. Denise ‘‘Denny’’ LeBoeuf, Director, John Adams Project, American Civil Liberties Union, New Orleans, LA Oral Testimony ..................................................................................................... 59 Prepared Statement ............................................................................................. 61 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Rep­ resentative in Congress from the State of Georgia, and Member, Sub­ committee on the Constitution, Civil Rights, and Civil Liberties .................... 9 APPENDIX Material Submitted for the Hearing Record .......................................................... 113 (III) VerDate Aug 31 2005 10:56 Sep 02, 2009 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 H:\WORK\CONST\070809\50861.000 HJUD1 PsN: 50861 VerDate Aug 31 2005 10:56 Sep 02, 2009 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 H:\WORK\CONST\070809\50861.000 HJUD1 PsN: 50861 LEGAL ISSUES SURROUNDING THE MILITARY COMMISSIONS SYSTEM WEDNESDAY, JULY 8, 2009 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, COMMITTEE ON THE JUDICIARY, Washington, DC. The Subcommittee met, pursuant to notice, at 10:10 a.m., in room 2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. Present: Representatives Nadler, Conyers, Delahunt, Johnson, Sherman, Jackson Lee, Sensenbrenner, Franks, King, Gohmert and Smith (ex officio). Staff Present: Heather Sawyer, Majority Counsel; Sam Sokol, Majority Counsel; David Lachmann, Majority Subcommittee Chief of Staff; and Paul Taylor, Minority Counsel. Mr. NADLER. This hearing of the Subcommittee on the Constitu­ tion, Civil Rights, and Civil Liberties will come to order. I will now recognize myself for a 5-minute opening statement. Today the Subcommittee examines the military commission sys­ tem and, more importantly, how we as a Nation can work together productively to clean up the terrible legacy of the Bush administra­ tion’s detention policies in a manner that provides us with a legiti­ mate legal framework going forward. One question which arises immediately in view of the apparent Administration position, as stated yesterday by Department of De­ fense general counsel Jeh Johnson that we can hold indefinitely even people acquitted in the military tribunal, is what is the pur­ pose of the military tribunal in the first place; indeed, what is the purpose of any court hearing if the judge can say you’re acquitted and remanded for indefinite detention? What’s the purpose of a trial in that case. Over the past 7 years, approximately 800 individuals have been detained at Guantanamo Bay in Cuba, with some 500 already hav­ ing being released before President Obama took office in January. In those 7 years only three detainees were convicted of terrorism offenses by military commissions. Approximately 240 individuals remain in Guantanamo. Most of these men have been held for at least 4 years, some have been detained for more than 6 years, all without being charged or tried or convicted of any crime, a blot on American justice by any standard. (1) VerDate Aug 31 2005 10:56 Sep 02, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CONST\070809\50861.000 HJUD1 PsN: 50861 2 In addition to Guantanamo we’ve also detained individuals in other parts of the world, including Afghanistan. Some of these cases are fairly straightforward; some are not. But for each of these cases, we need to have a means of determining whether the indi­ vidual is a combatant, lawful or otherwise; whether they are guilty of a crime; and whether they are a threat to the United States. We must decide how to deal with these individuals in a manner that ensures that our Nation is protected from those who would do us harm, and that is consistent with our laws, our treaty obligations and our values. This is the United States of America, and we have traditions and beliefs worth fighting for and worth preserving. The problem will not go away simply because we have closed Guantanamo. We are still fighting in Afghanistan and Iraq. We are still battling terror­ ists around the world. We will continue to have to intercept and detain individuals who
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