[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
[H.A.S.C. No. 112-42]
GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM
__________
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD
APRIL 13, 2011
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SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
ROB WITTMAN, Virginia, Chairman
K. MICHAEL CONAWAY, Texas JIM COOPER, Tennessee
MO BROOKS, Alabama ROBERT ANDREWS, New Jersey
TODD YOUNG, Indiana LORETTA SANCHEZ, California
TOM ROONEY, Florida COLLEEN HANABUSA, Hawaii
MIKE COFFMAN, Colorado
Michele Pearce, Professional Staff Member
Paul Lewis, Professional Staff Member
Famid Sinha, Staff Assistant
C O N T E N T S
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CHRONOLOGICAL LIST OF HEARINGS
2011
Page
Hearing:
Wednesday, April 13, 2011, Guantanamo Detainee Transfer Policy
and Recidivism................................................. 1
Appendix:
Wednesday, April 13, 2011........................................ 17
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WEDNESDAY, APRIL 13, 2011
GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Wittman, Hon. Rob, a Representative from Virginia, Chairman,
Subcommittee on Oversight and Investigations................... 1
WITNESSES
Fried, Ambassador Daniel, Special Envoy for the Closure of the
Guantanamo Bay Detention Facility, U.S. Department of State.... 3
Lietzau, William K., Deputy Assistant Secretary of Defense for
Detainee Policy, U.S. Department of Defense.................... 2
APPENDIX
Prepared Statements:
Fried, Ambassador Daniel..................................... 34
Lietzau, William K........................................... 25
Wittman, Hon. Rob............................................ 21
Documents Submitted for the Record:
[There were no Documents submitted.]
Witness Responses to Questions Asked During the Hearing:
[The information was not available at the time of printing.]
Questions Submitted by Members Post Hearing:
Mr. Wittman.................................................. 47
GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM
----------
House of Representatives,
Committee on Armed Services,
Subcommittee on Oversight and Investigations,
Washington, DC, Wednesday, April 13, 2011.
The subcommittee met, pursuant to call, at 4:00 p.m., in
room 2118, Rayburn House Office Building, Hon. Rob Wittman
(chairman of the subcommittee) presiding.
OPENING STATEMENT OF HON. ROB WITTMAN, A REPRESENTATIVE FROM
VIRGINIA, CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT AND
INVESTIGATIONS
Mr. Wittman. All right, folks, I think everybody is
situated, so we will get started, in the interest of time. I
appreciate everybody's efforts to accommodate us in today's
busy schedule, but I want to make sure that we are respecting
everybody's time.
I want to welcome everybody to the Oversight and
Investigations Subcommittee hearing on the U.S. Government's
Guantanamo detainee transfer policies and procedures and the
reengagement of some former detainees in terrorist activities.
Earlier today, our subcommittee members received a
classified briefing on these issues from our invited guests in
a closed session; and we will examine these issues further now
in an open hearing.
I am going to enter my opening remarks for the record and
dispense with those in the interest of time.
[The prepared statement of Mr. Wittman can be found in the
Appendix on p. 21.]
Mr. Wittman. But before introducing our witnesses, I ask
unanimous consent that non-subcommittee members, if any, be
allowed to participate in today's hearing after all
subcommittee members have had an opportunity to ask questions.
Is there any objection?
Without objection, non-subcommittee members will be
recognized at the appropriate time for 5 minutes.
Our witnesses today are Mr. William Lietzau, Deputy
Assistant Secretary of Defense for Detainee Policy; Ambassador
Daniel Fried, Special Envoy for the Closure of Guantanamo Bay
Detention Facility, Department of State; Mr. Ed Mornston,
Director of Joint Intelligence Task Force, Defense Intelligence
Agency; Ms. Corin Stone, Deputy Assistant Director of National
Intelligence for Policy and Strategy, Office of the Director of
National Intelligence; and Mr. Brad Wiegmann, Principal Deputy
Assistant Attorney General, National Security Division,
Department of Justice.
I want to welcome you all and thank you for your
participation. As we previously arranged, only Mr. Lietzau and
Ambassador Fried will make brief opening statements; and their
written testimony, without objection, will be made part of the
record. We look forward to Mr. Mornston, Ms. Stone, and Mr.
Wiegmann responding to questions from the subcommittee members.
I also want to remind my colleagues that we will use our
customary 5-minute rule today for questioning, proceeding by
seniority and arrival time.
Mr. Lietzau, let's start with you; and then we will proceed
to Ambassador Fried. Thank you very much.
STATEMENT OF WILLIAM K. LIETZAU, DEPUTY ASSISTANT SECRETARY OF
DEFENSE FOR DETAINEE POLICY, U.S. DEPARTMENT OF DEFENSE
Mr. Lietzau. Chairman Wittman, thank you for the
opportunity to be here.
In order to take this job, I retired from the Marine Corps
after more than 27 years of service, and I did so because I
recognize the vital importance of this issue to our warfighting
efforts and to our broader national security interests. For
that same reason, I welcome your investigation and this
opportunity to discuss our detention and transfer policies.
Since its creation, the Office of Detainee Policy has
worked closely with the House Armed Services Committee to
develop durable detention policies that conform with our
domestic and international legal obligations, uphold our
national values, and protect and further our national security
interests. Together, we have learned that there are many
challenges when dealing with the complexities of detention in a
21st-century, asymmetric armed conflict.
In the first days of this administration, the President
issued three executive orders that set forth a robust agenda to
develop a more sustainable detention policy that reflects our
values. Besides directing Guantanamo's closure, a policy to
which the administration remains committed, the President
ordered a comprehensive review of detainees remaining at the
detention facility to determine the disposition most
appropriate to each individual. This review, concluding in
January 2010, involved a task force of senior officials from
across the government. The recently signed executive order
builds on this effort by providing a periodic review for
covered detainees that again looks to the interagency for
unanimous agreement on any decision to transfer.
It is important to remember that a determination that a
detainee is approved for transfer does not necessarily result
in immediate departure from Guantanamo. The transfer
designation flowing from the earlier Justice Department
coordinated task force review or from a future periodic review
board is only the first step in a process.
Finding for a detainee a suitable location from both a
security and humane treatment perspective is a delicate and
difficult task. For that reason, Special Envoy Dan Fried and I
co-chair an interagency process where we carefully assess all
information related to transfer modalities and any new
information arising since the task force review identified the
detainee as a transfer candidate.
Providing a context in which transfers fit, I note that
they should not be viewed merely as a means towards the end of
closing Guantanamo Bay. A transfer process is a necessary
component to any law of war detention regime. Traditionally in
war, militaries capture and detain individuals to mitigate the
threat they pose in the ongoing conflict. Modern armed
conflicts with transnational terrorist organizations severely
complicate this effort. Membership is difficult to determine,
and the scope of the conflict is difficult to define.
Because of these complicating factors, over the years the
Department has developed and refined a series of processes in
Afghanistan, Iraq, and Guantanamo Bay, each of which is
designed to protect our warfighters by removing threats from
the battlefield, while ensuring that the United States does not
detain someone longer than necessary.
We must carefully weigh the costs and benefits of continued
detention in our counterterrorism fight. Just as we do with
prisoners of war in a more traditional armed conflict, we
acknowledge that the threat detainees pose change over time. We
cannot simply put belligerents back on the battlefield, but the
absence of process to assess whether the threat warrants
continued detention comes at significant cost in the
cooperation and respect of allies and partners.
To address these very complex matters, we must have a
framework that is principled, credible, and sustainable. By
principled, I mean it must provide fair and humane treatment to
each detainee, including a process by which we can distinguish
between a belligerent who poses a significant threat and one
whose detention is no longer necessary. In order to be
credible, this framework must advance the law in a way that
imbues the entire system with legitimacy.
Finally, the sustainability of such a framework depends not
only on its principled nature and its credibility but on its
ability to address the realities of 21st-century warfare. No
review system will be perfect. We must be able to guard against
belligerent reengagement, while still allowing for the full
spectrum of transfer or prosecution options as alternatives to
prolonged detention.
The Department stands ready to work with Congress to
further the requirements of a principled, credible, and
sustainable detention policy. Thank you for your continued
support, and I look forward to your questions, Mr. Chairman.
[The prepared statement of Mr. Lietzau can be found in the
Appendix on p. 25.]
Mr. Wittman. Thank you, Mr. Lietzau. Ambassador Fried.
STATEMENT OF AMBASSADOR DANIEL FRIED, SPECIAL ENVOY FOR THE
CLOSURE OF THE GUANTANAMO BAY DETENTION FACILITY, U.S.
DEPARTMENT OF STATE
Ambassador Fried. Chairman Wittman, thank you for the
opportunity. I welcome the chance to offer background to this
important and complex issue.
Working closely with our interagency colleagues, the State
Department has been involved in negotiations for the transfer
of 67 detainees to foreign countries during this
administration. This includes the transfer of 40 detainees to
third countries, that is countries of which they are not
nationals. We also follow the progress of former detainees,
particularly these detainees resettled in third countries.
The detention facilities at Guantanamo are modern and
humane; and the men and women who run them are serious, capable
professionals. Nevertheless, my years of working on this issue
directly in this administration, indirectly in the last one,
lead me to believe that the closure of the Guantanamo detention
facility is in our national interest.
The facility's existence does more to harm than improve our
security. Indeed, for many years, the facility has constituted
a net liability for our Nation and the world.
Transferring detainees from Guantanamo and expressing the
objective of closing it are not new. In 2006, President Bush
publicly expressed his desire to close the facility; and the
previous administration transferred 537 detainees from
Guantanamo, including 198 to Afghanistan, 121 to Saudi Arabia,
50 to Pakistan, and 14 to Yemen. These transfer efforts were
publicly known but generated neither much credit for the prior
administration nor much controversy.
By January 20, 2009, there were 242 detainees at
Guantanamo. Many already had been approved for transfer, and 20
had been ordered released by Federal courts. Our allies and
partners were calling for action to close Guantanamo.
President Obama signed Executive Order 13492, which
directed a comprehensive review of all remaining Guantanamo
detainees and the closure of the facility. The Guantanamo
Review Task Force and higher-level review panel established
under the executive order reviewed 240 detainees. Decisions
required unanimity among all the agencies represented on the
task force.
Of the 240 detainees reviewed, 36 were referred for
prosecution, either in Article III courts or military
commissions; 30 from Yemen were designated for ``conditional
detention'' because of the deteriorating security environment
in that country, meaning that they could be repatriated if
security conditions in Yemen improved; 48 were determined to be
too dangerous to transfer but not feasible for prosecution, and
thus were designated for longer-term detention under the
Authorization for Use of Military Force passed by Congress
after the 9/11 attacks; and 126 were approved for transfer.
My office focused on the 126 detainees approved for
transfer. These included, first, detainees who could in theory
be repatriated to their country of origin. This included 35
Yemenis approved for transfer before security conditions in
Yemen further deteriorated, and that is by far the largest
national group of detainees remaining at Guantanamo. In working
on repatriations, my office built on the experience of the
previous administration.
The second group approved for transfer included 57
detainees who could not be returned to their countries of
origin due to treatment concerns, and who therefore required
resettlement in third countries. As a matter of longstanding
policy both in this administration and the previous one, the
United States does not send any detainee to a country where it
is more likely than not that he will be tortured. This is
consistent with U.S. implementation of its obligations under
Article III of the Convention Against Torture. We take this
obligation seriously.
Because of the difficulty in finding countries willing to
accept detainees not their nationals but also capable of
mitigating whatever risk the detainee may pose, the bulk of my
office's work focused on third-country resettlements. These are
labor intensive.
Each resettlement is individually tailored to the country
and detainee concerned. We created solid channels of
information sharing with potential receiving governments about
detainees eligible for resettlement; we developed security
assurances appropriate to the detainee; and we encourage
measures to facilitate the former detainees' successful
reintegration into the receiving country.
We found that receiving governments approached detainee
settlement with care and caution. They took their own security
as seriously as we take ours. Often, it would take many months
to conclude a single resettlement. The time and care invested
were worth it.
Our work does not end with the detainee transfer. We follow
up with receiving governments to know how the resettlement is
going, both to learn lessons and to determine where there are
issues that need addressing. So far, our experience has been
generally positive, though a number of issues, more related to
integration than security, have developed.
We are alert to the potential for reengagement. The
interagency Guantanamo Detainee Transfer Working Group consults
regularly and in real time, when appropriate, on issues that
arise.
Of the 126 detainees cleared for transfer, 59 remain at
Guantanamo. Twenty-seven of these are Yemenis, and we are not
planning to repatriate any, absent a court order, until the
security situation there improves. The remaining 32 are
candidates for either repatriation or resettlement, and we
continue to assess each potential transfer case by case, and my
office works on a daily basis with members of the working group
about this process.
My office has also the responsibility to help inform the
Congress about detainee transfers. In that regard, some of the
Guantanamo-related reporting requirements, such as the 15-day
advance notification of all transfers, have facilitated this
flow of information. On the other hand, new certification
requirements on the transfer of detainees to foreign countries
interfere with executive branch authority and hinder our
ability to act swiftly and with flexibility during negotiations
with foreign countries. Flexibility is vital to developing an
arrangement that best addresses U.S. national security.
The Guantanamo Bay detention facility has raised
controversy and concern since it opened. Closing it remains in
the national interest, but doing so raises complex and
difficult legal, diplomatic, and security questions and
choices. It is worthwhile discussing these and seeking sound
solutions.
For too long, the debate about Guantanamo has been
polarized and, frankly, prone to extreme positions. As
President Obama said in his 2009 speech at the National
Archives, we seek to do what is right over the long term. We
can leave behind a legacy that endures and protects the
American people and enjoys a broad legitimacy at home and
abroad.
I hope these remarks and this whole process will help
demystify the careful work that goes into transferring
Guantanamo detainees abroad, and I look forward to your
questions. Thank you, sir.
[The prepared statement of Ambassador Fried can be found in
the Appendix on p. 34.]
Mr. Wittman. Thank you, Ambassador Fried. We appreciate you
and Mr. Lietzau's opening comments there, and we will continue
on with the hearing.
I want to welcome Mr. Andrews here and offer to him, if he
would like to enter a statement into the record or to make one
for the opening, we are open for doing that.
Mr. Andrews. Mr. Chairman, I would just reserve Mr.
Cooper's right to do that in the future should he want to
before the record closes.
Mr. Wittman. Without objection.
All right, we will move then to questioning, and I will
begin the questioning. I will begin with Ambassador Fried.
I wanted to know, are there regions or nations that are
more likely to accept transferees from Guantanamo than others?
And, if so, why or what are the specifics that they look at in
whether or not they will accept detainees?
Ambassador Fried. If you are referring to resettlements,
that is, accepting detainees not their nationals, it has been
principally European countries who have been the most
responsive.
Now, it is also true that when we look for countries we
look for countries that are both willing to accept detainees
but also capable, that is, have the capacity to mitigate any
risk that the detainee may pose. So that number of countries
quickly drops. But European countries have been very helpful,
though not only European countries. In working for
resettlements abroad, we do keep in mind the country's capacity
and the nature of the detainee.
Mr. Wittman. Very good. Are there reimbursements or
payments that are made to nations or certain nations in
exchange for resettlement of these detainees?
Ambassador Fried. Yes, sir. Some countries--not--fewer than
half the countries--but some countries have asked for and we
have offered, I would say, defraying of some of their costs.
These amounts have been reported to the Congress. The amounts
are classified, but let me say that the greatest amount was
under--per detainee, was under $100,000. So, yes, and I am
happy to provide the details.
Mr. Wittman. Very good. And one last question. If you can
tell us a little bit about the due diligence that goes into
place to determine what surrounds a detainee being sent to a
country, whether it is resettlement or whether it is another
set of conditions, if you can let us know a little more of the
specifics about that.
And then I know there has been some concern about detainees
going back to some of the countries that are war-torn and have
dealt with extremism and give us some of your thoughts about
those particular transfers that have taken place with those
countries.
Ambassador Fried. I have to be very careful in an open
session, so I will watch my words. And there is more to say in
a closed session, and I am willing to keep working with the
committee and with your staff, sir.
With respect to resettlements, countries that agree to
accept a detainee are taking on a responsibility to help that
detainee find a new life and also a responsibility for
security. We have found that governments have put in a lot of
effort to making detainee resettlements successful. Language
training, housing, vocational training, medical help, sometimes
psychological help are all elements of this.
When we discuss with a prospective receiving country a
resettlement, we do want to know in advance what the
resettlement will look like and in some detail. We also follow
up with governments to find out how it is going. Our experience
with resettlements has generally been positive, as I said.
Repatriations are rather different. Repatriations, of
course, mean the countries are going--detainees are going back
to their country of origin. In the previous administration,
they did so in rather large numbers, as I said. In this
administration, we became cautious about repatriations,
particularly to Yemen as the security situation deteriorated.
This was not, I should add, a break with the previous
administration. The caution had started in I think the last
year or so of the prior administration, and we continued it.
And, of course, President Obama suspended all repatriations to
Yemen in early 2010.
The challenges of a successful and secure repatriation to
countries where there is conflict is obviously greater, and we
benefit from DIA's [Defense Intelligence Agency] analysis
greatly in making these determinations.
I should also say, as a final point, that there are very
few detainees cleared for transfer, either resettlement or
repatriation, who are nationals of Afghanistan or Saudi Arabia.
So that problem is a small one, simply due to the numbers--the
remaining problem is small due to the numbers.
Mr. Wittman. Thank you, Ambassador Fried. Mr. Andrews.
Mr. Andrews. Thank you, Mr. Chairman. I thank the witnesses
for your testimony.
Ambassador, your statement is very factual and very
helpful. I just want to walk you through it to be sure I
understand it correctly.
Prior to the present administration taking office, 537
detainees were transferred from Guantanamo, is that correct?
Ambassador Fried. Yes, sir.
Mr. Andrews. And then on the day the administration took
office, there were 242 detainees. Only 240 were included in the
executive order because one had already been convicted and
sentenced and the other committed suicide, is that correct?
Ambassador Fried. Yes, sir.
Mr. Andrews. Now we are down to 240. And of that 240, your
focus is on the 126 detainees that were approved for transfer,
correct?
Ambassador Fried. Correct.
Mr. Andrews. Let me understand. What is the substantive
basis for the decision to transfer someone out? I am sure there
are different rationales, but what is the basis for that
decision?
Ambassador Fried. The decisions on transfers were made by
the review panel that was set up pursuant to the President's
executive order. And this was an interagency group. Its
decisions had to be unanimous. That is, if there was no
unanimity, there was no decision to transfer.
The group, the review panel, met weekly under the
chairmanship of the Department of Justice. It reviewed files of
detainees which provided the background of each detainee. The
principal criterion was security. That is, could a detainee be
transferred out of Guantanamo into conditions where any
remaining threat that detainee represented be mitigated in the
country to which he was going? That was the principal
consideration.
Mr. Andrews. Was there any like probable cause
determination made of innocence or guilt of the person?
Presumably--I am sorry, presumably, these people were detained
in the first place because there was some degree of suspicion
that they had either participated in some act of violence
against the United States or perhaps were a great threat to.
Were those concerns alleviated before the people were
transferred?
Ambassador Fried. I will defer at some point to my
Department of Justice colleague, but since I sat on the review
panel, I can answer some of this.
After 2008, detainees had access to the habeas process in
Federal courts; and one of the criteria that the review panel
was supposed to use was the legal basis for detention. In other
words, we were allowed to--in fact, instructed to look at this.
But when we were looking at the detainees, the principal
criterion was the threat that this detainee might represent and
whether that detainee should be detained or could be
transferred into a situation where there was any residual
threat could be mitigated.
Mr. Andrews. Let me ask you this question about no
particular case, because it would be unwise to ask or have you
comment. But, hypothetically, if a determination were made that
a detainee had likely participated in some act of violence
against the United States but there was a determination that
for some reason the person wasn't likely to do it again or
wasn't somehow a threat, would the person be detained or
shipped out?
Ambassador Fried. It was exactly these sorts of
considerations that occupied the time and discussions of the
review panel. We looked at everything we had in front of us;
that is, the detainee's background, the degree of commitment to
his struggle against the United States, the likelihood--the
severity of his involvement, and the likelihood that he would
reengage.
Mr. Andrews. Can I just ask you this, though, as a
rhetorical--and it is not meant to be a rhetorical question,
frankly, but if we thought there was any reasonable grounds to
think the person had committed an act of violence against the
United States, why would we ever release any of these people?
Ambassador Fried. The review panel took a look at the
totality of the detainee. All of its decisions were unanimous.
And, of course, the Joint Chiefs of Staff, the Defense
Department, Intelligence Community were sitting on the panel,
as well as the State Department, Department of Justice, and
Homeland Security. We certainly did take into account any
credible information in the file about a detainee's
involvement.
I am not talking about particulars, but I want to give you
a sense of the sorts of factors we had to consider. Was the
detainee actually ever in combat? Did the detainee participate
in a terrorist act? Did the detainee participate in training
but never actually did anything? Did the detainee not even
participate in training?
In other words, you had a variety of factors, and we made
decisions based on the background of the detainee. But the
question you posed, that is, did the detainee fight against
American forces, was a major consideration.
Mr. Andrews. But not a dispositive consideration?
Ambassador Fried. Without going back into the files, each
and every one, I don't want to make categorical statements, but
I would say it was an important consideration.
And, as I said, many detainees were not in the fight at
all. They had had--I am not talking about any particular
detainee--but maybe 2 weeks of training, never did anything,
picked up while fleeing. No terrorism, no attacks on the U.S.,
not much of a history of commitment.
But there were other detainees.
Mr. Andrews. Thank you, Mr. Chairman.
Mr. Wittman. Thank you. Mr. Conaway.
Mr. Conaway. Thank you, and I apologize to the witnesses I
didn't hear.
But, Ambassador, I am struck, having been in this thing
since 2005, that all of those folks who could have been
released with the least amount of risk were in the 537 and that
we had whittled this thing down to 242 really bad guys.
Now this whole conversation has been held in a very sterile
environment. We say ``resettlement,'' we say ``detainees,'' you
say ``it is the struggle against the United States.'' That
belies how dangerous these folks may very well be to this
country, without getting to specifics on this thing.
The other thing that occurs to me is your open bias against
Guantanamo Bay colors your judgment as to whether or not these
guys should be let go. Because one way to get rid of them is to
let them go into resettlement, whatever that phrase means. And
somehow if you could visit with us about how your bias to close
Guantanamo Bay but for the greater good did not influence your
decision-making when it came to looking at these guys who are
the worst of the worst.
If our review system, which all of these detainees have
gone through multiple, multiple assessments as to who they are,
what they are, what they did, and what they didn't do since
they were detained, at least since 2005 when I came into the
Congress, how we wound up keeping the shopkeeper or the farmer
who got swept up on the battlefield by accident, how any of
those were in the 242.
So it is a little troubling about how cavalier and how
sterile this conversation is. These are bad guys who either did
or want to hurt Americans and may very well want to again.
Their recidivism rate is high enough among the ones we did let
go, even under the Bush administration, that it gives all of us
involved in that idea or in that process great pause that, one,
we make a mistake, a grievous mistake and let somebody go that
we shouldn't, and they turn around and hurt one of our young
men and women in this fight.
So can you visit with me a little about my perception that,
because you are so driven to close Guantanamo Bay, that that
helped you with your decision as to who to let go?
Ambassador Fried. Of course, it is the policy of this
administration that Guantanamo should be closed. It isn't a
personal policy. I happen to agree with it.
But it was also----
Mr. Conaway. It turned into a personal policy. It is weird
that you would----
Ambassador Fried. No, no.
Mr. Conaway. Well, I don't want to be argumentative. Never
mind.
Ambassador Fried. President Bush also said he wanted to
close Guantanamo.
Mr. Conyers. We all want to, but whether or not we can is
the issue.
Ambassador Fried. But, to be clear, the administration's
policy includes long-term detention for detainees who are
deemed too dangerous to be released; and we believe--the
administration believes that that is legal, justified, and
prudent.
You mentioned that the 242 that were at Guantanamo were the
worst of the worst, the most dangerous. I believe you said
that.
Mr. Conaway. You would expect that given the process----
Ambassador Fried. In some cases, that is certainly true.
That is, the most dangerous detainees at Guantanamo are still
at Guantanamo, and they were not let out under the previous
administration. They are not going to be let out under this
one.
However, in some cases, the detainees--in other words, some
of the detainees in that group of 242 were not more dangerous.
They were not let out not because of any particular danger that
they posed but because they could not be sent back to their
country of origin.
For example, when in January 2009, there were 17 Uyghurs--
that is a Turkic people, Chinese minority. They could not be
sent back to China because of treatment concerns. They had been
ordered released by U.S. courts, and there were no countries
willing to take them. One of the jobs of my office was to find
countries willing to take them, and we did so.
Other detainees, for example, Syrians, Egyptians, Uzbeks,
could not be sent back to their countries of origin.
Mr. Conaway. I understand that. Excuse me, my time is about
to expire.
I also understand that there is a group there we all agree
never gets let out, and then there is the rest. So the further
down that food chain you go to get to that group that we never
let out, the risks increase.
I have got good confidence in you. You have let go all the
Uyghurs and the folks who don't--but as you close on that
number of folks who should not ever be let go, then you run the
risk of letting somebody go that shouldn't be.
So you really didn't address whether or not your personal
bias and/or the administration's bias to close Guantanamo had
an effect on letting people go that shouldn't have been let go.
Ambassador Fried. I will answer that straight up.
Absolutely not. I am perfectly comfortable and was perfectly
comfortable on the review panel with decisions not to transfer
detainees. That is part of the process. That is perfectly
legitimate. That is a perfectly legitimate, justified decision.
If it is a question of security and it is a judgment of the
review panel that someone should remain at Guantanamo for
security reasons or remain in detention for security reasons,
that is a legitimate, valid call, fully supported.
Mr. Wittman. Thank you. Mr. Coffman.
Mr. Coffman. Thank you, Mr. Chairman. First of all, I just
want to say that what we have is a politically driven failed
policy and really maybe by both administrations. But certainly
in 2000 I think the decision--when was the decision not to put
any more prisoners in Guantanamo Bay? When was that decision
made?
Ambassador Fried. It was 2006 or 2007. The last
administration. My colleague may know.
Mr. Lietzau. The last detainee went in 2008. But certainly
if you track how the detainees went in, there was a waning
before that, making it clear that there was an intent to not
put anyone there if you could avoid it.
Mr. Coffman. Right. I think perhaps when candidate Barack
Obama was running for the Presidency, he distinguished himself
from his rivals by certainly using this as an issue. And I
think not only did he convince the majority of the American
electorate that it was an issue, but I think he convinced the
international community at the same time that it was an issue.
But I think the greatest failure of the policy is that it
doesn't admit that we are a nation at war. That I think it is
part of this administration's fiction that we no longer have
the global war on terror, we have overseas contingency
operations; and we no longer have terrorist attacks, we have
man-caused disasters. So since we are removing certainly the
vocabulary from the lexicon of war, we therefore need to close
Guantanamo Bay.
We still need it. Because there are still individuals that
want to kill American civilians. And I really think that we
ought to consider the lives of Americans as more important than
the rights of terrorists, and that ties into military
commissions versus bringing them to U.S. soil and trying them
there. So that is just my view of the policy.
Let me ask a question. Ms. Stone or Mr. Mornston, what
impact has recidivism had on U.S. troops in Afghanistan and
elsewhere? A news article earlier this week highlighted two
former Gitmo detainees who were among America's most wanted,
Mullah Abdul Qayum Zakir--if I am saying this right--and Mullah
Abdul Rauf Khadim. Why were these detainees released from
Gitmo?
Mr. Mornston. Sir, there have been instances where
detainees who have been transferred from Gitmo have reengaged
and have been in the fight and have impacted the lives of U.S.
service members. We do track that. I can't discuss that much
further in this open session, but we do in fact know that that
has happened.
Mr. Coffman. Okay. Ms. Stone.
Ms. Stone. Again, I would echo my colleague. We track that
information, but we would have to discuss it further in a
closed session.
Mr. Coffman. When we resettle these terrorists because we
no longer think they are a problem, yet we have had a
recidivism rate of 14 percent that we know of--and, obviously,
the rate is much higher than that, probably, and I think there
is an admission that it is higher than that--what costs do U.S.
taxpayers bear in the resettlement?
Ambassador Fried. There are some cases in which the U.S.
Government has offered to defray some of the receiving
country's costs. Those figures have been reported to Congress.
But in this--I can't in this session give the exact number,
but I will say that the highest per detainee was under
$100,000. This was used to defray housing costs, language
training, costs associated with a successful and secure
resettlement. But those figures are available, and they can be
provided to this committee.
Mr. Coffman. For the record, I would like them provided to
this committee.
[The information referred to was not available at the time
of printing.]
Mr. Wittman. Thank you. Mr. Rooney.
Mr. Rooney. I will try and be quicker this time, Mr.
Chairman. I know we are voting.
During opening statements of both the gentlemen at the
witness table, I kind of got the sense that there is this
perception problem with Gitmo. I have heard it a million times
before. You know, we are better off without Gitmo than we are
with it, regardless of if you have gone down there and you have
seen it, what is actually happening at Gitmo versus the
perception of it.
And one of the things that always bothered me was when you
talk about these guys that can't be released because they are
too dangerous, I mean, isn't there a perception problem with
that, that we in America detain people? If we are going to try
them, I assume some of these guys we are going to put through
military commissions or Article III or whatever comes down the
pike, and they are going to be found not guilty perhaps or
guilty. But if they are found not guilty because of lack of
evidence or because we gained evidence through what is now
termed as torture and we re-detain them anyway, isn't there a
perception problem with that internationally? That is just as
bad as whatever people think of Guantanamo Bay, realistic or
not?
Ambassador Fried. There have been enormous perception
problems with Guantanamo; and Guantanamo has been the subject
of heated, exaggerated, and often highly polarized and
inaccurate debate from both sides, from all sides.
Guantanamo itself, the facilities itself are modern,
decent, humane; and the people who work there should be given
credit for doing a tough job and doing it, as far as I can
tell, doing it extremely well.
Mr. Rooney. Because I am running out of time, isn't that
our problem then? Isn't that a leadership problem from both
Bush and Obama, that we have let it become something that it is
not globally? And don't we owe it to whatever we are trying to
do down there and for whatever reason why to say to the
international community, come to Guantanamo Bay and see what is
really going on there, rather than just saying like, okay, we
will shut it down? You know, we might end up detaining these
people forever, even though they may be found not guilty.
Ambassador Fried. Well, before I had this job, I was
Assistant Secretary of State for European Affairs in the Bush
administration; and I saw firsthand the liability that
Guantanamo constituted for our country and the world.
Mr. Rooney. How do you measure that? How do you measure the
liability?
Ambassador Fried. I will give you an example. Every time I
went to Europe as Assistant Secretary and asked our allies for
something, help in Afghanistan or some common project, it was
as if I was sailing into the wind or swimming with a 50-pound
weight tied to a leg--choose your metaphor--because of the
problem that Guantanamo represented.
Now, you might argue--and I might agree with you--that
there was misinformation, a lot of the problems were
exaggerated, there was a lot of ignorance. But it was a genuine
problem. I don't want to see any American administration
saddled with that sort of a problem in the future.
Now, for the past 2 years, a lot of that problem has been
alleviated. And I agree with you that it is important to make
the case for a sound, sustainable, well-grounded detention
policy which is not going to satisfy either extreme. This
administration has sought to do it, and it is part of our job
to explain it.
Mr. Rooney. Can I ask you really quickly, the third-country
transferees, are they released in the third country or are some
of them released and some of them imprisoned by that country?
How does that work?
Ambassador Fried. Most of them, with the exception, in
fact, of two who went to Italy for prosecution, all the others
have been transferred for resettlement, which means they are--
--
Mr. Rooney. Monitored.
Ambassador Fried. In this unclassified session, I will say
they are strongly assisted by the receiving government.
Mr. Rooney. Ms. Stone, why doesn't the DIA provide the
names of these individuals or publish the names of these
individuals anymore as they used to?
Ms. Stone. I will let my DIA colleague answer that.
Mr. Mornston. Thank you for that question, Congressman.
Mr. Rooney. I just wanted to stop picking on the Ambassador
for a minute.
Mr. Mornston. I understand. I am glad to take the heat off
of him for a second.
DIA publishes a classified report concerning the
reengagement of individual detainees. We use all sources of
intelligence, some clandestinely collected, some collected
through open sources. But my big concern and the concern of the
Intelligence Community is protecting those sources and methods.
We do the work that we do to provide information that is
used to warn our troops, inform our commanders and policymakers
of the potential risks on the battlefield; and my strongest
concern is that we perform that function and we can do that
best by keeping that classified information in very closed
channels.
Mr. Wittman. Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman. Is it fair to say,
Ambassador Fried or Mr. Lietzau, that some of the persons
detained in Guantanamo were scooped up in operations that
perhaps caught them in the wrong place at the wrong time but
really there were no factual bases in place to support them
being enemy combatants? Is that true? Real quick because our
time is running out.
Ambassador Fried. Okay. When I look at the Guantanamo
detainees, at least the 242 that were there when this
administration took office, I think it is best put in terms of
a bell curve. At one end are truly dangerous people. The phrase
``the worst of the worst'' applies to them. At the other end,
there are people who may have been at the wrong place at the
wrong time but not many of them.
Mr. Johnson. And, of course, you came in at only 242 that
were in, but it was a total of 779 since January of 2002, some
of whom, I would argue, were just caught in the wrong place at
the wrong time, scooped up, brought over. A decision was made
either by the courts or by the Bush administration to release
them. It was about 537 released under Bush. And of those 537, I
think I show where 79 confirmed cases where detainees went out
and reengaged, 79 of those detainees were released under the
Bush administration watch. Would you disagree? Anybody?
Mr. Lietzau. I think you are correct in both assertions.
There were people in the first large group that were just
scooped up; and they have been cleared out through previous
processes, as Congressman Conaway was alluding to in his
earlier question. And there are those who have reengaged, or in
this case were found to have reengaged, may not still be in
that status right now. But, yes, that mostly come from the
earlier, larger group.
Mr. Johnson. And only two confirmed cases of detainees
being released under the Obama administration.
Ambassador Fried. Three confirmed cases and two suspected.
Mr. Johnson. All right. So now what you have been doing is
evaluating these remaining 242, I believe, detainees. We know
some of them, like the high-value detainees that we have, are
going to stand trial. Others, we don't know whether or not they
will stand trial or not. I seem to remember that there was an
issue with there being an adequate file in existence on each
detainee.
Do we have any detainees down in Guantanamo at this point
where we have that kind of a problem, where there is no file
that documents any evidence against the detainee that could
support a court case?
Mr. Wiegmann. I will take that question.
In the Guantanamo Review Task Force process, all the
detainees were evaluated. One of the factors was how many of
them could be prosecuted. There were only about 36 who were
evaluated and determined they could be prosecuted, either in a
military commission or a Federal Court.
So for the remaining detainees down there, I think it is
fair to assume--well, actually, the ones who are transferred
are being transferred. But for those who are being kept, there
is another 48 who, it is fair to assume, can't be tried. So
there is 36 who can be prosecuted out of the 242.
Mr. Johnson. So a civilized society like the one that we
live in cannot be known as being a place where we can go and
take a citizen from another country and hold them in prison or
in detention, whatever you want to call it, forever. We just
can't do that.
Thank you.
Mr. Wittman. Thank you, Mr. Johnson.
I would like to thank our witnesses today for your
testimony and responses. We have a vote on the floor, so we are
going to need to head down there. But we appreciate all of your
time and effort. We would appreciate your prompt response to
any questions for the record that we may send you after this
session. There may be some things that we weren't able to
encompass in the time provided.
We appreciate your patience and diligence through this
process with us going in and out with votes and the other
activities of the day. So we appreciate that and look forward
to your answers to our written questions. Thanks again.
[Whereupon, at 4:52 p.m., the subcommittee was adjourned.]
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A P P E N D I X
April 13, 2011
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QUESTIONS SUBMITTED BY MEMBERS POST HEARING
April 13, 2011
=======================================================================
QUESTIONS SUBMITTED BY MR. WITTMAN
Mr. Wittman. For many years, the U.S. government has sought
security and humane treatment assurances from countries prior to the
transfer of detainees. How effective are these assurances? Where and
under what circumstances have they worked and not worked well? Why have
they not been effective in some cases? What needs to be done to ensure
effective assurances are in place before transferring any detainees in
the future? Please provide response in classified form, if necessary.
Mr. Lietzau. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. Why did the U.S. government send detainees to war-
torn, unstable locations such as Afghanistan? Were detainees
transferred to these locations even after cases of recidivism had been
identified? Please provide response in classified form, if necessary.
Mr. Lietzau. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. Given the rate of reengagement reported, were there
errors in judgment with respect to transfer decisions? What lessons
have been learned and to what extent have they been applied in more
recent detainee transfer determinations? Please provide response in
classified form, if necessary.
Mr. Lietzau. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. Did the Executive Order Task Force review result in
different assessments of the security threats posed by detainees? If
so, please explain. Please provide response in classified form, if
necessary.
Mr. Lietzau. Of the 126 detainees approved for transfer by the Task
Force, 63 had previously been approved for transfer during the prior
administration, ordered released by a court, or both. The remaining
detainees approved for transfer had not previously been approved.
However, this result does not necessarily reflect a change in the
threat assessment of each detainee. Rather, the decision reflects the
best predictive judgment of senior government officials, based on the
available information, that any threat posed by the detainee can be
sufficiently mitigated through feasible and appropriate security
measures in the receiving country. Indeed, all transfer decisions were
made subject to the implementation of appropriate security measures in
the receiving country, and sensitive discussions are conducted with the
receiving country about such security measures before any transfer is
implemented. Thus the assessment of the prospects for mitigating a
threat in a receiving country is a key factor that may lead to
different results over time.
Moreover, the Task Force for the first time systematically
consolidated information and expertise from across the United States
Government and provided detailed guidance as to how both the detainee's
threat and the ability of a receiving country to mitigate that threat
should be evaluated. In all instances, the Task Force reviewed all
prior threat assessments. In many cases, the resulting Task Force
assessments were consistent with those prior assessments. In others,
the assessments differed, just as security assessments made during the
prior administration sometimes differed from one another or evolved
over time. In some cases a different assessment could be based on the
fact that the Task Force was evaluating a wider array of material than
had been previously considered and that the input of all relevant
agencies on the decision was received. In other cases, facts may have
changed since prior assessments, including facts bearing on the
credibility of some of the relevant evidence concerning the detainee or
the situation in the potential receiving country.
Again, all transfer decisions were ultimately based on the
unanimous agreement of DOD, DOS, DOJ, DHS, the Joint Chiefs of Staff,
and the Office of the Director of the National Intelligence.
Mr. Wittman. In December 2010, the U.S. government reported that 25
percent of former detainees from Guantanamo are confirmed or suspected
of reengaging in terrorist activities. Do you believe this is an
accurate estimate of the number of recidivists? Could it be much higher
than what you confirm or suspect? What would be your best guess as to
what the rate actually is?
Please provide response in classified form, if necessary.
Mr. Mornston. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. What impacts have recidivists had on U.S. troops in
Afghanistan and elsewhere? A news article earlier this week highlighted
2 former GTMO detainees who are among America's most wanted--Mullah
Abdul Qayyum Zakir and Maulvi Abdul Rauf Khadim. Why were these
detainees released from GTMO? Please provide response in classified
form, if necessary.
Mr. Mornston. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. The rate of former Guantanamo detainees confirmed or
suspected of re-engaging in terrorist-related activities remained
relatively constant during the years 2004 to 2008, at about 5 to 8
percent. However, since 2008 the rate has increased to 25 percent. What
accounts for this dramatic increase in the past 2 years? Is it due to
the transfer and release of higher threat detainees, a change in
reporting criteria, improved government monitoring, or something else?
Please provide response in classified form, if necessary.
Mr. Mornston. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. Are there particular groups of former detainees or
countries where monitoring and follow-up is problematic? What is being
done to increase our government's capacity to track these former
detainees? Please provide response in classified form, if necessary.
Mr. Mornston. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. The Defense Intelligence Agency previously published
names of some former detainees suspected or confirmed of reengagement.
This allowed the lists to be scrutinized by outside individuals and
groups. Why did DIA publish these names in the past? Why does DIA no
longer provide any specific names of individuals known or thought to be
reengaged? Will it ever return to the previous practice? Please provide
response in classified form, if necessary.
Mr. Mornston. [The information referred to is classified and
retained in the subcommittee files.]
Mr. Wittman. What analysis has DIA conducted, or plans to conduct,
to identify the key characteristics or factors associated with former
detainees who have reengaged in terrorist activities? Please provide
response in classified form, if necessary.
Mr. Mornston. [The information referred to is classified and
retained in the subcommittee files.]
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