(Washington, D.C.) Today, Congressman Alcee L. Hastings (D-FL) and Senator Benjamin L. Cardin (D-MD), Co-Chairmen of the Commission on Security and Cooperation in Europe (U.S. Helsinki Commission), held a hearing on detainee-related policy issues in the aftermath of the Supreme Court’s ruling in Boumediene v. Bush that foreign terrorism suspects held at the Guantanamo Bay detention facility have the right under the Constitution to challenge their detention in a U.S. civilian court.
The hearing entitled, “Guantanamo Detainees after Boumediene: Now What?” examined issues surrounding the United States’ detainee policies, particularly focusing on detainees at the Guantanamo Bay facility. Additionally, the hearing considered how European countries are dealing with terror suspects.
Unfortunately, 3 ½ years after Brig. Gen. Jay Hood stated ‘sometimes we just didn’t get the right folks’ – and six years after the Guantanamo camp was opened – there seems to be little progress made in addressing the fundamental problems that plague that detention facility,” said Chairman Hastings. “The fact that Guantanamo remains open speaks to the lack of political leadership in fixing the problems there. We continue to imprison some people, like Huzaifa Parhat, even though he has been determined not to be a threat to the United States. Meanwhile, there has not been a single successfully completed trial of those suspected of the most serious crimes against the United States. In light of the vital implications of this subject for our country, I sorely regret the absence of administration witnesses for this discussion.”
Co-Chairman Cardin noted, “The detention facility at Guantanamo Bay serves as a lightning rod for international human rights criticism of the United States. I am happy to defend the United States when we’re right – even if we’re alone – but in this case, I’d don’t think we are right. I think the detention facility there should be closed.” He further commented, “In light of the latest defeat for the administration’s detention policies at the hands of the Supreme Court, as well as several unfavorable lower court rulings, I think it is high time to stop tinkering with a failed system and re-open entirely the question of how we handle terrorism suspects.”
Witnesses from the Department of Defense, Department of State, and Department of Justice were invited to testify, but declined to participate.
Expert testimony was received from Mr. Matthew Waxman, Associate Professor of Law, Columbia Law School; Mr. Gabor Rona, International Legal Director, Human Rights First; and Mr. Jeremy Shapiro, Research Director of the Center on the United States and Europe, Brookings Institution. Copies of all the statements and an unofficial transcript will be posted on the Commission’s website (www.csce.gov).
Chairman Hastings’ Full Statement:
“In January 2005 – 3 ½ years ago – Brig. Gen. Jay Hood, at that time the U.S. commander in charge of the detention facility at Guantanamo Bay, gave an interview to the Wall Street Journal in which he acknowledged, “sometimes we just didn’t get the right folks.” Sometimes we just didn’t get the right folks.
“The Wall Street Journal article continued: “[i]n theory, once a detainee is thought no longer to present a threat to the U.S. or possess any valuable intelligence, he should be sent home. [ . . . ] In practice, the system is stuck. Releasing a prisoner requires the approval of the Defense Department headquarters, as well as the State Department, Central Intelligence Agency and the FBI.” General Hood further observed, “nobody wants to be the one who signs the release papers . . . there’s no muscle in the system.” [WSJ, January 26, 2005]
“Unfortunately, 3 ½ years after General Hood made those comments – and six years after the Guantanamo camp was opened – there seems to be little progress made in addressing the fundamental problems that plague that detention facility.
“In fact, the shortcomings of the Guantanamo system are perhaps best illustrated by the fate of the extremes among those detained there.
“Last month, the United States Court of Appeals for the District of Columbia Circuit ordered that one of 17 Chinese Uighurs be released or given a new military hearing. The United States had previously cleared this man, Huzaifa Parhat, of the charge of being an enemy combatant, but none the less has kept him imprisoned at GTMO. He’s not an enemy of the United States, but our country keeps him imprisoned.
“At the other end of spectrum, there has not been a single completed trial of those suspected of the most serious crimes committed against our country, including Khalid Sheik Mohammed, who is believed to be responsible for helping to plan the 9/11 attacks. The case against alleged “20th hijacker” Mohammed al Qahtani has been dismissed without prejudice, for reasons that were not announced. In his case, it is speculated that there is insufficient evidence against him that is not completely tainted by the means used to extract it, or that the methods of interrogation used against him have rendered him incapable of participating in his trial.
“The fact that GTMO is still open is testament to the genuine challenges we face in relocating its residents, and we discussed those challenges at the hearing the Commission held last year, but it also speaks to a lack of political leadership in fixing the problems there.
“Today, in light of last month’s Supreme Court’s decision in the Boumediene case upholding the right of Guantanamo detainees to habeas corpus, I believe it is timely and appropriate to revisit the policy questions related to our detention policies.
“For that purpose, we have invited Matthew Waxman and Gabor Rona to join us and share their considerable insights. Gabor Rona testified at our Guantanamo hearing last year, and has just returned from visiting Guantanamo.
“In addition, we are joined by Jeremy Shapiro, who will discuss the question of what Europe is doing with its terror suspects – the United States is not the first country to struggle with terrorism, and perhaps there is something we can learn from European experiences.
“Clearly, no European country has thrown the prohibition against torture out the window, or tried to defend waterboarding as a “professional interrogation technique.” But at the same time, if we look carefully at the civilian criminal procedures used in Europe, they seem to present their own set of challenges. At a minimum, we can say that many European countries are struggling with some of the same issues we are, and I look forward to hearing more from Mr. Shapiro.
“Finally, I would like to note that we did invite witnesses from the administration to join us here today – we asked people from the Department of Defense and the Department of State, and the Department of Justice. Unfortunately, they are apparently unprepared to discuss this issue at this time, and, in light of the vital implications of this subject for our country, I sorely regret the absence of administration witnesses.”
Co-Chairman Cardin’s Full Statement:
“Mr. Chairman, as you and I know from our work in the OSCE Parliamentary Assembly, the detention facility at Guantanamo Bay serves as a lightning rod for international human rights criticism of the United States. As I’ve said before, I am happy to defend the United States when we’re right – even if we’re alone – but in this case, I’d don’t think we are right. I think the detention facility there should be closed.
“I therefore welcome your convening this hearing so we can revisit some of the issues we addressed at last year’s hearing on Guantanamo, now taking into consideration the Supreme Court’s recent decision in Boumediene.
“In fact, in light of the latest defeat for the administration’s detention policies at the hands of the Supreme Court, as well as several unfavorable lower court rulings, I think it is high time to stop tinkering with a failed system and re-open entirely the question of how we handle terrorism suspects.
“In that regard, the United States has an opportunity to act on one of the unimplemented recommendations of the 9/11 Commission, which is “to engage its friends and allies to develop a common coalition approach toward the detention and trial of captured terrorists, including drawing on Article 3 of the Geneva Conventions on the law of armed conflict.”
“I’m not sure that the various national systems in Europe for handing terror suspects provide a model that can be transposed to the United States – many European countries have restrictions on religious clothing, permit broad surveillance in public places including of demonstrations, criminalize mere membership in organizations, criminalize speech based on content alone, and have other substantive law provisions that I think many Americans would find unacceptable.
“But so far, there has been precious little discussion in this town of what other countries do, and I think we need to broaden our examination of these issues to at least consider what European countries are doing with their terror suspects. And I certainly believe that whatever detainee policies are developed by the next administration must have more support from countries that we look to for critical counter-terrorism cooperation.
“I would also note for the record that the Senate Judiciary Committee, on which I sit, is holding a hearing tomorrow on how the Administration’s failed detainee policies have hurt the fight against terrorism. The Committee will examine how to put the fight against terrorism on sound legal foundations.”
The Commission on Security and Cooperation in Europe, also known as the Helsinki Commission, is a U.S. Government agency that monitors progress in the implementation of the provisions of the 1975 Helsinki Accords. The Commission consists of nine members from the United States Senate, nine from the House of Representatives, and one member each from the Departments of State, Defense and Commerce.