298 But our policy has been to accept the truth of the government’s data where it is unequivocal. Where it is equivocal we have to act appropriately. But the number 30 is a gross injustice to America, to the people who released them, and to our ability to find a way to return peo- ple to their homes. Mr. ROHRABACHER. I find out this is a nonclassified document. So we will be very happy to give that to you. It has the names of 12 people that the Defense Department is claiming specifically, with all the numbers and the details. Mr. DENBEAUX. So it is 12? Mr. ROHRABACHER. There is 12 on this list. I haven’t seen any other of—— Mr. DENBEAUX. One of the problems with my 30 number is, sometimes it is 12. Mr. ROHRABACHER. Let me note that, even though there are problems with, whether it is 12 or 30 or 15—— Mr. DENBEAUX. Or three. Mr. ROHRABACHER [continuing]. Or three, I would suggest that the people—many of the people, or most of the people, who ended up in Guantanamo were non-Afghans who were picked up at the time, at the time after—you know, after 9/11, and at a time of great turmoil. It does seem to me that it would indicate that we are not talking about people who you just have to give the benefit of the doubt, that they were on a vacation trip or something into Afghanistan at that time, that something—that wouldn’t be where a normal per- son would go. Now, whether they are all guilty of terrorism—you know, were they part of the al-Qaeda legion—well, that remains to be seen, but a large number of these people were in Afghanistan and at a very questionable time. And anyone that was ‘‘recruited into the Taliban,’’ and I know a lot about what was going on there, these were not people who just were voluntarily there and just had some sort of religious epiphany that they should join the Taliban. Usu- ally, it is because they were part of a committed anti-Western Is- lamic sect that was exemplified by al-Qaeda and its relationship to the Taliban. Mr. DENBEAUX. I understand that. I would ask you one favor. In light of Mr. Kurnaz’s position and experience, I would ask that you, and no other government offi- cials, give a number of the people who have left Guantanamo and been killed and captured on the battlefield, unless they know the actual number. It seems to me we do ourselves a huge disservice by making up numbers that create horror stories. And if I were a European coun- try and America wasn’t willing to take them themselves and keeps saying, there are 30, there are 12, there are 16, there are 3, there are 8—I think we are tying our hands. Mr. ROHRABACHER. It is very hard to verify this. The German Army had lots of files, and everybody wore a uniform, and it was very easy to determine who was an SS officer and who was a Ger- man Army officer. And that’s the enemy we were fighting then.

299 The enemy we are fighting today, they don’t wear uniforms, they have enormous sums of money coming to them, I might add, from some of our Arab friends who are using the oil money that we give them; and there are all sorts of, you know—— [Disturbance in the hearing room.] Ms. JACKSON LEE [presiding]. We need order. Mr. ROHRABACHER. And I will be done in 1 second. And just to say, this is a different situation; it is not as definable as it was. And to be fair about it, I know—I try to give my country the benefit of the doubt. I try to give my Government and my mili- tary the benefit of the doubt, but I am fully aware that they make mistakes and that some people in those bodies do not incorporate in their soul the same standards of humanity that I would have. So, anyway, with that said, thank you very much for your testi- mony. I think it has been a good discussion. Ms. JACKSON LEE. Thank you. The gentleman’s time has expired. Mr. ROHRABACHER. Or exceeded. Ms. JACKSON LEE. We will never say that. We know there is a great deal of passion around this issue, and I promise not to keep the witnesses, who have been very gracious with their time, an extensive amount of time. But thank you for your indulgence. And I thank Chairman Delahunt for, again, a more than thoughtful hearing, if you will. I always am overwhelmed about running out and getting the next action item or the action item that we should really take from this hearing. And I start, first of all—and I am going to try to be like I am cross-examining, because, in fact, I have an engagement myself that is shortly ending. But I think this hearing is crucial for us to get the framework or lay the framework, if not for this ad- ministration, for the forthcoming administration. I frankly believe there has to be a solution to Guantanamo Bay. Many of us are on legislative initiatives that are demanding closing Guantanamo Bay. As I make that point, let me, for the record, be very clear, there are no non-patriots in this room. I would include the witnesses, as well, and those in the audience, and those of us who should, in our words of opposition to what is going on in Guan- tanamo Bay, be described as wanting to promote recidivism, to pro- mote the terrorists that may, for a chance, have been released or have come into the system by any chance to denigrate the entire United States Military because we recognize it, as Mr. Abraham is here, there are those who want to see a system that works. Now, as a Member of Congress, having gone to Guantanamo Bay at least three times, if my recollection serves me well, we did get to see play out—let me say, by way of instruction—this CSRT. And the thought was that they were giving us the suggestion that they were making it all right. Obviously, that is not the case. So let me pose sort of a real bullet point—and don’t take it lit- erally—but focused questions that I would appreciate an abbre- viated answer; and I start with Mr. Willett. Let me just go across and give Mr. Sulmasy a chance, as well. Mr. Sulmasy, thank you. The term ‘‘enemy combatant,’’ are you comfortable with it and should it be changed? And I really do need

300 ‘‘yes’’ or ‘‘no,’’ ‘‘not comfortable,’’ ‘‘should be changed’’ kind of an- swer. Mr. SULMASY. Should be changed. ‘‘Illegal belligerent’’ would be the appropriate—better? Better? Ms. JACKSON LEE. Try again. Put it closer. Is it green? Mr. SULMASY. There we go. ‘‘Illegal belligerent’’ would be the bet- ter term in—— Ms. JACKSON LEE. Illegal—— Mr. SULMASY [continuing]. Belligerent. Ms. JACKSON LEE. Belligerent. Mr. SULMASY. In accordance with the laws of war, any combat- ants—— Ms. JACKSON LEE. Would you give them Fifth Amendment Due Process rights? Mr. SULMASY. No. Ms. JACKSON LEE. All right. Mr. Willett. Mr. WILLETT. The question? I am sorry, the first one or the sec- ond one? Ms. JACKSON LEE. I only had one. What is your position on ‘‘enemy combatant’’ and should it be changed? Mr. WILLETT. The term has to be abolished. It has no tether in military law. ‘‘Illegal or unlawful belligerent’’ is the right way to look at it, yes. Ms. JACKSON LEE. And abolished? Would you give the individ- uals postured as something due process rights? Mr. WILLETT. Yes, I would give them habeas. That’s the simple answer. Ms. JACKSON LEE. Thank you. Mr. Smith. Mr. STAFFORD SMITH. Yes. It certainly should be abolished. We should just comply with the Geneva Conventions; we signed them years ago. If, indeed, someone has committed a war crime, they get the same tribunal, at least that we give our own soldiers. That’s the law, and that’s fair enough. Ms. JACKSON LEE. Thank you. Mr.—and do I pronounce it Denbeaux? Mr. DENBEAUX. Denbeaux. Ms. JACKSON LEE. Professor Denbeaux, yes. Answer the question of should we abolish ‘‘enemy combatant’’ and should, however the person be postured, be given habeas and due process rights? Mr. DENBEAUX. Yes. I think they should be given habeas and due process rights. And the term ‘‘enemy combatant’’ is just dust in the air that confuses the issue. Ms. JACKSON LEE. And that’s why I was—I wanted to get the right terminology, Lieutenant Colonel, because they have you as Mr./Lieutenant Colonel who is retired, your position. Colonel ABRAHAM. My position is that ‘‘enemy combatant’’ has never made sense as a term. And as to due process, forgive me if I take just a few seconds. We can no more give them due process than we have the right or the power to take due process away. Either it exists for everyone or it doesn’t exist. I would expect due process in any way in which I am treated, and I can deny no one on this Earth that same right.

301 Ms. JACKSON LEE. Let me just follow up with you then, Lieuten- ant Colonel, because you have had some direct experience with Guantanamo Bay and, as well, the tribunals. The representation, as I might imagine, those who may view this hearing, have listened to the intensity of the questioning, is that here is an array of individuals who want to jeopardize the integrity and security of the United States of America. Let me pose this question to you. We have heard Mr. Sulmasy probably wants a hybrid, but I think his view is very important be- cause maybe we can have a meeting of the minds on what the ter- minology would be and what rights the individuals would have. I think you made a very gross mistake by suggesting to the world that we are willing to subordinate all of what we have argued for that this country represents. And I don’t think anyone would be mistaken if they didn’t think that this whole era, post-9/11, has im- pacted the standing of America in the world, but really the integ- rity of America as it relates to the concepts that people have, the one place you can go for rights that would be preserved for those who have a different opinion. Obviously, these individuals are characterized as dangerous to the life and liberty of the United States. But we have been known to be the kind of country that can accept the restraining or retain- ing of individuals along with the underpinnings of our Constitu- tion. My question to you: Would we be less safe if we got rid of the ‘‘enemy combatant’’ and had a process, which you have seemingly adhered to, that included habeas, that included due process? What would be the protections that could be put in place that would sug- gest that we could be as safe? Colonel ABRAHAM. Madam Chairwoman, we would be safer. I was at the Supreme Court building a couple hours ago and heard the end of a tape. And in it was a discussion of what the Su- preme Court is and what it means. And the importance was in the comment, ‘‘When the Supreme Court stops enforcing the under- standings of our Constitution, and we as a people stop listening, that will be the end of our system of justice.’’ I think that there is absolutely no risk to our national security and our security as a nation if we very clearly, unequivocably state as to the 270-plus that are at Guantanamo: If there is no claim against you, the doors are open. If there is a claim against you, we will tell you what it is; we will tell you what it is in a transparent system. It is when we act in a way inconsistent with that notion, that we bring not only greater disrespect upon ourselves as a nation, but greater risk to our citizens every day that we exist in this international community. Ms. JACKSON LEE. I hope that the summarizations and the state- ments that the witnesses collectively have made are really studied. And if someone is viewing this tape, this hearing, reading this transcript, that they will understand the depth of the statement that you have made. From the very beginning, many of us were both opposed, and I would argue, ‘‘confused,’’ though it is terminology that you don’t want to attribute to Members of Congress, where the term ‘‘enemy

302 combatant’’ even came from. What was the legitimacy of the defini- tion? And I hope that Professor Denbeaux is researching the ori- gins of it. I will get to you on that. And I am going past my time, but let me do this. Let me get to Mr. Smith, Stafford Smith, on this young Gharani who was 14 years old when he was sold by the Pakistani military as a terrorist to the United States Military and then later taken to Guantanamo. Fourteen years old. It is likely he was there when Members of Con- gress visited. Are there other minors or persons who were arrested as minors? And I can answer that question myself. I believe it is ‘‘yes,’’ because I know there were Afghanis, who went in as minors, in custody in Guantanamo Bay. His legal representative recently traveled to Chad to advocate on his behalf. Will the Chadian Government lobby for his release? What are his options if the Chadian Government refuses to get in- volved? And do you have the history of why he was sold by the Pakistanis as a terrorist to the United States Military? And why would we go to such a level of taking taxpayer dollars to pay for a terrorist? Could we not surmise how old he might have been? And did we think that was a productive utilization? What did we think we were doing? Maybe it was, you know, the day after 2000, 9/11, maybe we were so in an uproar, and concerned certainly about that enormous tragedy, that we thought we were acting, if you will, efficiently and effectively. Mr. Stafford Smith, what possessed us to engage in that manner? Mr. STAFFORD SMITH. Well, I think it all goes back to the crisis that we were facing. And we have got to face the fact that people were in a panic back then, and they were responding perhaps as they thought best. This notion of paying bounties was what some people thought was the best way to get the truth, but unfortu- nately, it led us to make a lot of mistakes. And it led us to basically purchase Mohammed El Gharani, who certainly, because he is from Chad, and certainly because he faced discrimination in Saudi Arabia, was fully aware of the way he was basically being bought and sold. Ms. JACKSON LEE. But he was 14. Mr. STAFFORD SMITH. He was 14. I could give you a long history, and I would be glad to. I don’t want to. Ms. JACKSON LEE. No. What is the result? I asked a series of questions. What is his status now? Is the Chad Government going to get involved? Mr. SMITH. He is still being held there. He hasn’t been cleared for release. He is no—in my personal opinion, he is no more a ter- rorist than my grandmother, but we just need to have a fair hear- ing to determine this. He is not the only minor in Guantanamo Bay. We have identified potentially 64 people. We can’t be certain about all of them. A lot of them have been released now. But, for example, Omar Deghayes—not Omar Deghayes, Omar Khadr and Mohammed Jawad, two of the first three people to be charged in military com- missions, were both concededly juveniles. So we have got plenty of

303 juveniles left in Guantanamo Bay, and we need to take very seri- ously our obligation to them. Ms. JACKSON LEE. But you don’t think these tribunals are the forum for trying to address the concerns of your client and the other minors? Mr. STAFFORD SMITH. Certainly not with Mohammed El Gharani. He is not charged with anything and he never will be. We need to get him out of there. And I have had someone from my office go to Chad twice. They tell us that they have had no contact from the State Department about taking him back there at all. We have now tried to initiate that contact, but Chad is not a rich country. They don’t have people that they run around as their lawyers. And Chad’s willing to take him. They are perfectly happy to take him. And we need to send this child home so he can get on with his education, which is what he should have been doing. Ms. JACKSON LEE. He has been there how long? Mr. SMITH. 61⁄2 years. Ms. JACKSON LEE. 61⁄2 years. No charges? Mr. STAFFORD SMITH. No charges. Ms. JACKSON LEE. Lieutenant Colonel Abraham, is that befitting of the reputation, image, and the goals of the U.S. to fight ter- rorism, 64 youngsters, a 14-year-old? Colonel ABRAHAM. I can’t speak to everybody who has ever put on a uniform, but I know, in the time that I have served and the people with whom I have served, two observations. The first is, as a second lieutenant, I raised my hand and stated an oath of office; and with each promotion I repeated it. And I find nothing befitting in what was done that matches the conduct that was expected of me, and that I expected of those with whom I worked and who worked under me in those 26 years. And I will also tell you, Madam Chairwoman, that in the time since the declaration—the declaration was first written, I have re- ceived a number of letters from flag officers and from junior officers and from enlisted with far more time in the service than I ever had who have said, to a person, ‘‘Thank you, this is what we expected the military to be.’’ I take great honor in every one of those letters and those com- ments. Ms. JACKSON LEE. And that was when you were pressing the en- velope of justice or trying to ensure fairness? Colonel ABRAHAM. That was when, as a lawyer from one of the firms representing a detainee said, Mr. Abraham has engaged in ‘‘career suicide.’’ Take that for what it’s worth. Ms. JACKSON LEE. That is unfortunate. But let me pay tribute to you and the many others who stand for a sense of justice in this very difficult process. Mr. Denbeaux, as a professor, can you give us the origins of ‘‘enemy combatant’’ in a very succinct—was this a singular decision of the Defense Department and the AG at that time? I have no recollection of a congressional goal, so refresh my mem- ory. Mr. DENBEAUX. I suspect many people know how to answer that question better than me.

304 Ms. JACKSON LEE. I am sorry, I can’t hear you. Mr. DENBEAUX. I suspect many people on this panel can answer that question better than I can. I would simply like to point out that the definition of ‘‘enemy combatant’’ doesn’t require combat; that is, you can be an ‘‘enemy’’—55 percent of the people in Guantanamo aren’t accused of ever doing any hostile act. My students refer to them as ‘‘enemy civilians.’’ And the fact of the matter is that the definition of ‘‘enemy com- batant’’ itself is what offends me. The origins of the term that cre- ated such a problem, I think perhaps almost everybody else here could explain better than I can. Ms. JACKSON LEE. And I am going to ask Mr. Willett. Let me finish with Mr. Denbeaux, just simply saying we would like to—I assume you have submitted your statement in the record, but I think it is important on this question of recidivism—that might be the tallest mountain to climb. I recall a recent news article that cited an individual that had been released from Guantanamo Bay and was either in—my mem- ory fails me; I don’t know whether it was where—I don’t want to call out a country’s name—and, of course, had engaged in some act—whether they went back to Afghanistan. And so we have cited that over and over again. I think your research on the question of misrepresentation and whether or not it is 2 or 3 or 12 or 30 is very, very important. Be- cause in order to get us back on track, eliminating ‘‘enemy combat- ant,’’ I think by legislative fix, if you will, in that terminology, as- suring the American people that we are not opening the gates for terrorism to run from one end of this Nation to the next; and two, getting down to the core of what we need to do, that if we do have and have captured a terrorist who goes through this process, whether we have to build a site, we can hold them with the affir- mation and approval of the world and fight terrorists with the af- firmation and approval of the world, if they know we are fighting terrorists and are not fighting 14-year-olds. So your recidivism information would be very important. And I don’t know whether you have concluded it or not, but I would cer- tainly like to see its conclusion as to whether or not we have a problem with recidivism or whether it has been misrepresented to us. Mr. DENBEAUX. I hope that my statement and the previous re- ports that I have submitted as part of that are in the record, so you can have all that information. Ms. JACKSON LEE. And your conclusion was—and forgive me for not hearing you. Mr. DENBEAUX. My conclusion was that our Government actually can’t figure out how many people have returned to the battlefield. But the number, giving them the benefit of the doubt, is tiny, two or three. The person you are referring to now, we referred to as the de- tainee known as ‘‘ISN 220.’’ That is a remarkable person. Because the biggest problem that the government has with that—remem- ber, our methodology is to assume everything the government says is true, whether we don’t know if it is or not.

305 But this is somebody the military said, ‘‘Please don’t release; this is somebody who will kill if he is released.’’ Somebody—and we don’t know who, why, or how, or for whatever reason—approved his release. The Defense Department doesn’t follow people after they are re- leased. Three years later he apparently engaged in a suicide attack. One of the questions that my students keep asking me is, ‘‘Why was he released? Who decided to release him?’’ Because the missing part of this whole equation is, there is no accountability for our conduct. Ms. JACKSON LEE. At any time. And the other part of it is that we have already concluded that the tragedy of 9/11, besides the enormous loss of life, was the inco- herence of our intelligence and our Intelligence Community from all sectors, including DoD, DOJ, and others to have intervened or been preventative. So in this instance, one hand didn’t know what the other hand—we released him against the wishes of the DoD, and then didn’t have the Intelligence Community prepared to con- sider him trackable. You raise a very good point. Let me, let Mr. Willett, and then I am going to close, thanking the witnesses for their indulgence. Mr. Willett? Mr. WILLETT. Congresswoman, I was going to come back to your question about ‘‘enemy combatant.’’ Ms. JACKSON LEE. Yes, and its origins. Mr. WILLETT. The origins of the term are long after the Guanta- namo prison was populated. It began in 2002; they began bringing prisoners there. In 2004, the Supreme Court said these people are going to have some kind of process; and at that point, the Defense Department made up this phrase. Ms. JACKSON LEE. I am glad you said that. So it was an adminis- trative act? Mr. WILLETT. It was an administrative act in July 2004. And what they endeavored to do was to conflate ideas from military law, where you can hold as a detainee the enemy soldier, but he is a person of honor; you don’t treat him with any dishonor. They tried to conflate that idea with the idea of criminal law, where you have a wrongdoer. The problem is, in criminal law, the wrongdoer gets process. So by mushing the two together they came up with an idea where there is no process, and we can treat the person dishonorably and forever. And that’s what we have in Guan- tanamo today. If you return to military law, as Mr. Stafford Smith said, if you return to the Geneva Conventions, the rules are already there. You can hold, during the pendency of active hostilities, the enemy sol- dier. You treat him just like you treat your own soldiers. A prisoner of war camp is not a place of dishonor; indeed, it is written right in the Army regulations that the commandant of the camp is obliged to return salute. Can you imagine somebody saluting a Guantanamo prisoner? I can’t. Well, you treat him like an enemy soldier. And then if there is some suggestion that this person is engaged in crime—he is a ter-

306 rorist, for example—you try him. You court martial him. If he is convicted, you sentence him. Those rules have been there for years. We don’t need new rules. Ms. JACKSON LEE. And the sentencing can be extreme, right? Mr. WILLETT. Of course. Ms. JACKSON LEE. There may be, though I may not promote this, they may possibly be sentenced to death. Is that possible? Mr. WILLETT. Yes. Ms. JACKSON LEE. So if the crime is heinous enough, if the al- leged crime, if they determine that individual happened to have been a terrorist, happened to have been actually involved in ter- rorist acts, they could be subjected to the highest of penalty? Mr. WILLETT. They could under military law. We didn’t need new rules. The rules are all there. And the new rules were invented in effect to avoid any kind of accountability. And now the Congress is left, trying to clean up the mess 7 years later. Ms. JACKSON LEE. Well, let me thank each of the witnesses—Mr. Sulmasy, Mr. Willett. Mr. Sulmasy, I just want to say you may not have gotten as many questions, I think the ranking member certainly queried you, but you gave a most important statement, as I questioned you, which is that there may be a light at the end of the tunnel for peo- ple who have different perspectives on this issue. You have at least acknowledged that the ‘‘enemy combatant’’ is certainly wrong thinking and wrongheaded. So I thank you. I know you have many other points that you have made eloquently, but I thank you for that. Mr. SULMASY. Thank you. Ms. JACKSON LEE. We might find common ground. Mr. Willett, Mr. Stafford Smith, Mr. Denbeaux, and Lieutenant Colonel Abraham, again thank you for your service. Certainly, if the other gentlemen have served in their previous lives, we thank you for your service as well. Chairman Delahunt called this hearing, ‘‘The City on the Hill or Prison on the Bay? The Mistakes of Guantanamo Bay and the De- cline of America’s Image’’; and frankly, I think you added an enor- mous perspective to this debate. It is clear, from my perspective, that we went down the wrong trail, the wrong direction, under best intentions by declaring, one, Guantanamo Bay was the best approach, but then subsequently utilizing a terminology that has cost America a lot. And it certainly could be argued as to whether or not we have made America safer. It would be my intent to work with this committee legislatively; and I know that much work is already ongoing. I frankly believe that we should rid ourselves of the terminology and the fractures of ‘‘enemy combatant’’; this should be combined, however, with en- hanced intelligence. It should be combined with maybe—as Mr. Willett has said, don’t reinvent the wheel, but go back to the International Convention or the convention that has been utilized, with some subsets dealing with those who may have been or are charged with criminal acts. I think the gentleman from who is in Germany, Mr. Kurnaz, was a glaring example of the error of our ways. The 14-year-old, who

307 I understand is still of Chad by birth, who is still incarcerated— now 5, 6 years—and others are glaring evidences that we are doing ourselves no good. We are doing ourselves harm. And I conclude by saying that we can secure America on the grounds of a constitutional premise that America has lived by for 400 years. That should give some credibility that democracy and freedoms actually work. We have survived 400 years, plus. Other nations have not. And so I don’t know why we are so frightened by mixing and rec- ognizing we have to secure America, but that civil liberties, civil dignities, the basic premise of the Constitution, the rights of pris- oners, the treatment of soldiers that we have adhered to for dec- ades—for centuries, or at least for decades—cannot work in this in- stance. And so your testimony has contributed to our resolve that this is a broken system. And as it gives us the resolve, let me counter by saying, it should not give terrorists, real terrorists, any comfort, because if we do our job right, if we work with the Intelligence Community, if we alter our missteps in Iraq, if we get back focused on what our true mission is as relates to terrorists, and fighting it. For many of us—it is the war in Afghanistan for some, and oth- ers, it is retrenching back, but there are diverse opinions. But cer- tainly we are not finding our safety in the cells of Guantanamo Bay with people being held without the right for addressing their griev- ances in the appropriate manner. I think it is wrong. I think this hearing has highlighted it. And none of us today who have spoken in this context should be de- clared non-patriots. I hope that we will be declared, as history re- ports us, as people loving this country and true patriots who want to get it right. With that, this hearing is adjourned. I thank the witnesses. [Whereupon, at 7:32 p.m., the subcommittee was adjourned.]