[House Report 111-378]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-378
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RESOLUTION OF INQUIRY REGARDING THE TRANSFER INTO THE UNITED STATES OF
CERTAIN DETAINEES HELD AT NAVAL STATION, GUANTANAMO BAY, CUBA
_______
December 15, 2009.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 920]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 920) directing the Attorney General to
transmit to the House of Representatives all information in the
Attorney General's possession regarding certain matters
pertaining to detainees held at Naval Station, Guantanamo Bay,
Cuba who are transferred into the United States, having
considered the same, report unfavorably thereon without
amendment and recommend that the resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background....................................................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 4
Committee Cost Estimate.......................................... 4
Performance Goals and Objectives................................. 5
Constitutional Authority Statement............................... 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Dissenting Views................................................. 5
Purpose and Summary
On November 19, 2009, Ranking Member Lamar Smith introduced
H. Res. 920. The resolution directs the Attorney General to
transmit to the House of Representatives all documents of the
Department of Justice that refer or relate to:
(1) any legal guidance or recommendations made since
January 20, 2009, regarding additional legal rights or
protections, including under the Constitution, statutes, and
treaties, detainees held at Naval Station, Guantanamo Bay,
Cuba, receive when transferred into the United States from such
Naval Station, Guantanamo Bay, Cuba; or
(2) pretrial detention, post conviction incarceration, or
transportation within the United States, of detainees held at
Naval Station, Guantanamo Bay, Cuba, who are to be transferred
into the United States for prosecution and trial in the United
States District Court of the Southern District of New York.
Background
Under the rules and precedents of the House of
Representatives, a resolution of inquiry is one of the methods
that the House can use to obtain information from the Executive
Branch.\1\ It ``is a simple resolution making a direct request
or demand of the President or the head of an executive
department to furnish the House of Representatives with
specific factual information in the possession of the executive
branch.''\2\ The typical practice has been to use the verb
``request'' when asking for information from the President, and
``direct'' when addressing Executive department heads.\3\
Clause 7 of Rule XIII of the Rules of the House of
Representatives provides that if the committee to which the
resolution is referred does not act on it within 14 legislative
days, a privileged motion to discharge the resolution from the
committee is in order on the House floor.
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\1\Christopher Davis, House Resolutions of Inquiry, CRS Report,
November 25, 2008, at 1 (quoting U.S. Congress, House, Deschler's
Precedents of the United States House of Representatives, H. Doc. 94-
661, 94th Cong., 2nd sess., vol. 7, ch. 24, Sec. 8.
\2\Id.
\3\Id.
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While recognizing the importance of the underlying issue
regarding timely closure of the Guantanamo Bay detention
facility, for the reasons summarized below, the Committee
believes that the resolution is unwarranted. In essence, the
resolution seeks information that the Administration already
has provided, or is required by law to provide, to the
Congress.
First, the Attorney General, the Assistant Attorney General
in charge of the Justice Department's National Security
Division, the Director of the Federal Bureau of Investigation,
and the General Counsel of the Defense Department have all
testified before this Committee, as well the Senate Judiciary
Committee, and the House and Senate Armed Services Committees,
on these very subjects.\4\
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\4\Assistant Attorney General Kris and General Counsel Johnson
testified before the Committee and addressed these subjects on July 30,
2009. Assistant Attorney General Kris and General Counsel Johnson also
testified before the Senate Judiciary Committee on July 23, 2009, the
House Armed Services Committee on July 24, 2009, and the Senate Armed
Services Committee on July 7, 2009. Attorney General Holder testified
before the Committee and addressed these subjects on May 14, 2009.
Attorney General Holder also testified before the Senate Judiciary
Committee on November 18, 2009, and June 17, 2009. FBI Director Mueller
testified before the Committee and addressed these subjects on May 20,
2009. Director Mueller also testified before the Senate Judiciary
Committee on March 25, 2009, and September 16, 2009.
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Second, the Assistant Attorney General of the Justice
Department's National Security Division has provided written
answers to specific questions raised by the resolution, such
as:
L``What are the advantages and disadvantages
of holding trials in the United States?''
L``Would bringing the detainees into the
United States for trial give them additional
constitutional rights?''
L``What additional constitutional rights will
a detainee gain if they are tried in the United States
versus Guantanamo?''\5\
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\5\Responses of David S. Kris to Questions for the Record, July 7,
2009, Hearing of the Senate Armed Services Committee ``To Receive
Testimony on Legal Issues Regarding Military Commissions and the Trial
of Detainees for Violations of the Law of War.''
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Third, in September 2009, in response to a Committee
request, the Department of Justice provided the Committee with
legal analysis of ``baseline due process protections'' that
would apply to military commission proceedings if held in the
United States or Guantanamo Bay.
Fourth, Committee staff have received several bipartisan
briefings on the progress and findings of the several
Administration task forces convened to address legal and
operational issues regarding detention and transfer policy.
Fifth, the Congress and the Administration have
negotiated--and enacted into law--a detailed set of reporting
requirements obligating the Administration to transmit
extensive information on the issues raised by the resolution to
Congress before any detainee is transferred to the United
States for trial.\6\
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\6\See, e.g., Section 319, Supplemental Appropriations Act of 2009,
P.L. 111-32, Department of Homeland Security Appropriations Act of
2010, P.L. 111-83.
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In light of these facts, the Committee approved adversely
reporting H. Res. 920 to the House, without amendment.
Hearings
No hearings were held in the Committee on H. Res. 920.
Committee Consideration
On December 9, 2009, the Committee met in open session and
ordered H. Res. 920 adversely reported, without amendment, by a
rollcall vote of 20 yeas to 13 nays, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H. Res. 920:
1. H. Res. 920 was ordered reported unfavorably by a vote
of 20 to 13.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Gutierrez................................................... X
Ms. Baldwin.....................................................
Mr. Gonzalez.................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
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Total....................................................... 20 13
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this resolution does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee estimates that
implementing the resolution would not result in any significant
costs. The Congressional Budget Office did not provide a cost
estimate for the resolution.
Performance Goals and Objectives
Clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 920 does not
authorize funding.
Constitutional Authority Statement
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 920 is not a
bill or a joint resolution that may be enacted into law.
Advisory on Earmarks
Clause 9 of rule XXI of the Rules of the House of
Representatives is inapplicable, because H. Res. 920 is not a
bill or a joint resolution.
Section-by-Section Analysis
H. Res. 920 directs the Attorney General to transmit to the
House of Representatives, not later than 14 days after the date
of adoption, all documents of the Department of Justice that
refer or relate to:
(1) any legal guidance or recommendations made since
January 20, 2009, regarding additional legal rights or
protections, including under the Constitution, statutes, and
treaties, detainees held at Naval Station, Guantanamo Bay,
Cuba, receive when transferred into the United States from such
Naval Station, Guantanamo Bay, Cuba; or
(2) pretrial detention, post conviction incarceration, or
transportation within the United States, of detainees held at
Naval Station, Guantanamo Bay, Cuba, who are to be transferred
into the United States for prosecution and trial in the United
States District Court of the Southern District of New York.
Dissenting Views
We strongly support H. Res. 920 and oppose adversely
reporting this resolution to the House. H. Res. 920 directs the
Attorney General to transmit to the House of Representatives
all information in the Attorney General's possession regarding
certain matters pertaining to detainees held at Naval Station,
Guantanamo Bay, Cuba, who are transferred into the United
States.
Attorney General Holder recently announced his decision to
try five plotters of the 9/11 terrorist attacks, including
mastermind Khalid Sheikh Mohammad (KSM), in a domestic criminal
trial in the U.S. District Court for the Southern District of
New York. This decision threatens the safety of the American
people and sets a dangerous precedent for future enemy
combatants apprehended on the battlefield.
The majority accuses us of hypocrisy for opposing the New
York trial of KSM and the others because we wholeheartedly
supported the domestic prosecution of another 9/11 terrorist,
Zacarias Moussaoui. While we did support the prosecution of
Moussaoui in the U.S. District Court for the Eastern District
of Virginia, there is no hypocrisy. The majority fails to
acknowledge several important distinctions between the
Moussaoui case and the proposed trial of KSM and the other 9/11
plotters.
Most importantly, Moussaoui was apprehended inside the
United States. He was taken into custody on August 16, 2001, in
Minnesota on immigration violations. After his connection to
the 9/11 attacks was established, the government tried him in
Federal court because that was the only forum available--there
were no military commissions in place at that time.
The case against KSM and his co-conspirators is entirely
different. Never before in U.S. history has an enemy
combatant--who was caught on the battlefield fighting and
killing Americans--been tried in a U.S. civilian court.
Importing terrorists into the United States for purposes of
criminal prosecution grants them additional constitutional
rights. Once on U.S. soil, terrorists can argue for additional
rights that may make it harder for prosecutors to obtain a
conviction in a criminal trial.
KSM recognized this advantage when he was first captured in
2003. According to CIA Director, George Tenet (appointed by
President Clinton), KSM said ``I'll talk to you guys after I
get to New York and see my lawyer.'' KSM is not a common
criminal who committed a homicide on the streets of New York.
He is an enemy combatant who committed an act of war against
the United States, killing thousands of innocent Americans.
At one time, General Holder himself recognized the need to
be able to detain and interrogate terrorists outside the normal
process of criminal prosecution, going so far as to recognize
that terrorists are not even entitled to prisoner-of-war
protections under the Geneva Conventions. In an interview on
CNN in January 2002, General Holder said:
It seems to me that given the way in which [the
terrorists] have conducted themselves, however, that
they are not, in fact, people entitled to the
protection of the Geneva Convention. They are not
prisoners of war. If, for instance, Mohamed Atta had
survived the attack on the World Trade Center, would we
now be calling him a prisoner of war? I think not.
Should Zacarias Moussaoui be called a prisoner of war?
Again, I think not.\1\
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\1\See ``2002 Video Flashback--Eric Holder: Terrorist Detainees
Don't Fall Under Geneva Conventions,'' available at http://
newsbusters.org/blogs/kerry-picket (also featuring video of Holder
interview).
But now, the administration's Office of Legal Counsel has
apparently concluded that even detainees tried by military
commission on United States soil will be given constitutional
protections against self-incrimination, without attracting much
support elsewhere for holding trials by military commissions in
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the U.S. According to the Wall Street Journal:
The Justice Department has determined that detainees
tried by military commissions in the U.S. can claim at
least some constitutional rights, particularly
protection against the use of statements taken through
coercive interrogations, officials said.
The conclusion, explained in a confidential memorandum
whose contents were shared with The Wall Street
Journal, could alter significantly the way the
commissions operate--and has created new divisions
among the agencies responsible for overseeing the
commissions.
Defense Department officials warn that the Justice
Department position could reduce the chance of
convicting some defendants. Military prosecutors have
said involuntary statements comprise the lion's share
of their evidence against dozens of Guantanamo
prisoners who could be tried.
. . . ``There is a school of thought . . . that if they
actually convene these things in the [U.S.], the courts
will quickly find that all the due process
constitutional stuff we deal with in criminal courts
will be applicable,'' said another military official
familiar with the talks. ``The main push for this
argument comes out of'' the Justice Department and the
Office of Legal Counsel, the official said. ``It hasn't
gotten a lot of traction with other folks.''
This person said Pentagon officials preferred not to
provide defendants additional rights unless courts
forced them to.\2\
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\2\Jess Bravin, ``New Rift Opens Over Rights of Detainees,'' The
Wall Street Journal (June 29, 2009).
During testimony before the Senate Judiciary Committee,
General Holder said he believes a U.S. court, rather than a
military commission, gives the government its best chance for
success. This is contrary to common sense. A military
commission trial would likely take half as long, be more likely
to succeed, and be less risky for the American people.
And, in the case of the 9/11 conspirators, success was
already guaranteed. Before President Obama announced his plan
to close Gitmo, KSM and his co-conspirators had planned to
plead guilty to charges and proceed to execution. But the Obama
administration decided to forgo the assured success of the
military commissions and take its chances with a civilian
criminal trial, giving the 9/11 conspirators a second chance.
Now, to no one's surprise, KSM and the others are expected
to plead not guilty to forthcoming charges in New York,
creating a public platform for the 9/11 terrorists to advertise
their anti-American propaganda around the world. By trying the
terrorists in civilian court, the Administration is granting
the 9/11 conspirators rights far beyond those provided under
the Geneva Conventions, namely the full rights of domestic
criminal defendants.
ADDITIONAL CONSTITUTIONAL AND LEGAL RIGHTS
Supreme Court precedents indicate courts can bestow more
constitutional rights on people simply in virtue of their being
on U.S. soil. The Supreme Court has held, for example, that
constitutional rights can protect people who have ``developed
sufficient connection'' with the U.S. Clearly, if a terrorist
detainee is housed on American soil, he could be deemed to have
``sufficient connection'' to the U.S. to be granted additional
constitutional rights.
President Obama's own Solicitor General, Elena Kagan,
signed a brief in the Supreme Court in a related case earlier
this year in which she argued that only the President and
Congress, and not the courts, had the authority to order the
transfer of a non-citizen into the U.S. In that brief,
Solicitor General Kagan recognized ``the critical distinction''
the Supreme Court has drawn ``between an alien who has effected
[sic] an entry into the United States and one who has never
entered.''
Solicitor General Kagan further cautioned the Supreme Court
not to ``blur the previously clear distinction between aliens
outside the United States and aliens inside this country or at
its borders.'' ``This basic distinction,'' she elaborated,
``serves as the framework on which our immigration laws are
structured, and repeatedly has been recognized as significant
not just under the Constitution but also as a matter of
statutory and treaty law.''
The President should not now make the mistake that his own
Solicitor General argued the courts should not make, namely
ordering non-citizen terrorists onto U.S. soil. Under existing
law, the U.S. already gives terrorists more rights than any
other country has given them in the history of the world. It
should not grant them even more by placing them on U.S. soil.
By prosecuting KSM and the others in a U.S. civilian
criminal court, the Obama Administration is guaranteeing these
terrorists the ability to argue that certain constitutional
rights have been denied or are afforded them including (1) 6th
amendment speedy and public trial rights; (2) 4th amendment
unreasonable search and seizure rights; (3) 5th amendment right
against self-incrimination; (4) and 6th amendment right to
counsel, trial by jury, and right to confront their accusers.
Thus, the detainees could succeed in suppressing certain
evidence, such as statements or confessions made without proper
Miranda warnings and a waiver of such warnings, or statements
made as a result of interrogation techniques not used by
criminal investigators, or any possible evidence seized without
appropriate probable cause or warrant.
The detainees will also argue their right to call any
number of witnesses from foreign or U.S. authorities who
apprehended them overseas to high-ranking Bush Administration
officials. Although this trial will focus on the 9/11 attacks,
savvy defense attorneys could and likely will use it as a
platform for denouncing Guantanamo Bay, interrogation
techniques, or even the U.S. presence in Iraq and Afghanistan
and a host of other perceived wrongs.
Any one of these could threaten the government's ability to
obtain a conviction. The right to a public trial not only
threatens the disclosure of classified information (discussed
below) but will also provide a platform for the detainees to
espouse their hatred for America and stir up renewed support
for their jihad around the world.
In addition to constitutional rights, the detainees will be
able to draw out this dramatic process with any number of
challenges and motions including a motion for change of venue
or a motion to sever the trial into separate trials.
``Welcome to New York, Now Die,'' was the headline of the
New York Post the day after General Holder announced his
decision to try these five terrorists in New York City. ``Kill
them without a trial, just a bullet in the head and say,
`Goodbye.' Why waste taxpayer money?'' This statement, from a
70-year-old truck driver from New York, and many others like
it, as well as the numerous newspaper headlines and editorials,
will all be admissible in a venue hearing.
Federal Rule of Criminal Procedure 18 and the ``continuing
offense venue provision'' of 18 U.S.C. Sec. 3237(a) provide
that ``any offense against the United States . . . committed in
more than one district'' may be prosecuted in ``any district in
which such offense was begun, continued, or completed.''
Given this provision, Federal Rule of Criminal Procedure 21
allows the accused to unduly complicate the proceedings against
them, because Rule 21 states that ``the court must transfer the
proceeding . . . if the court is satisfied that so great a
prejudice against the defendant exists in the transferring
district that the defendant cannot obtain a fair and impartial
trial there.'' (Emphasis added.)
Can the Department of Justice be confident that its choice
of the Southern District of New York will even remain the venue
since there is case law granting venue motions due to
prejudicial pretrial publicity, and since there will be the
inarguable difficulty of finding unbiased jurors from a pool of
citizens in New York, who, as adults, will certainly have a
living memory of this monstrous attack on their own city?
In early December, hundreds of people gathered outside the
Federal courthouse in Manhattan to protest this trial. Many of
these protestors are surviving family members and friends of
those killed in the 9/11 attacks. With this protest and the
extensive media coverage in the few weeks since General
Holder's announcement, we have barely scratched the surface on
the publicity that this trial of the century will attract.
In addition to a request for change of venue, it's not
unreasonable to expect a request for severance of this trial,
particularly from the other, lesser known defendants. The
standard for severance under Federal Rule of Criminal Procedure
14 likewise concerns whether a particular defendant's own
defense is compromised by prejudice as a result of his case
being joined to those of other defendants. Prejudice can be
shown when a joined defendant cannot receive a fair trial
because publicity against another defendant will be
prejudicial. In a typical trial, prejudicial pretrial publicity
may demand that the court grant a severance motion.
What consideration has the Department of Justice given to
the fact that having KSM as a co-defendant, someone who has
shown a willingness to publicly declare his guilt and his
desire to engage in militant jihad against Americans, will
likely amount to prejudice for the other defendants?
PUBLIC DISCLOSURE OF CLASSIFIED INFORMATION
The New York City trial of KSM and four other 9/11 plotters
threatens the disclosure of classified or sensitive
information--potentially arming terrorists around the world
with information to use in a future attack against America.
At trial, prosecutors may be forced to reveal U.S.
intelligence on the detainees, along with the methods and
sources used in acquiring it. This will put sensitive
information directly in the hands of al Qaeda to better
understand our intelligence-gathering techniques and respond
accordingly. For example, the trial of the 1993 WTC bombing
disclosed information regarding the WTC's architectural design
and structure and even what size plane it would take to bring
down a WTC tower.
General Holder alleges that these concerns are not
legitimate because the government can shield the public release
of classified information through the Classified Information
Procedures Act (CIPA). CIPA ``provides pretrial procedures that
will permit the trial judge to rule on questions of
admissibility involving classified information before
introduction of the evidence in open court.'' These procedures
are intended to provide a means for the court to determine
whether classified information is actually material to the
defense.
But CIPA is not an outright bar to the disclosure of
classified information. Rather, it precludes only that
information which the judge determines is neither discoverable
under the rules nor relevant to the trial. So, if it's
discoverable and relevant--the judge can require its disclosure
to the defense.
General Holder in his testimony before the Senate Judiciary
Committee stated that the potential disclosure of classified
information in a civilian trial is really no different from
that of a military commission trial because the commission
rules are based on CIPA. As former Federal terrorism prosecutor
Andrew McCarthy has pointed out, however, the commission rules
may be based on CIPA, but they are not the same as CIPA. On the
contrary, the Military Commissions Act allows for (1) deletions
of classified material from discovery documents made available
to the accused; (2) the withholding of methods and sources of
intelligence collection from the accused; and (3) the deletion
of classified information from exculpatory evidence.
And unlike military commissions, where the presumption is
to withhold classified information (especially if it involves
sources and methods), in civilian trials under CIPA, the
presumption is to disclose classified information if it is
relevant.
CIPA is flawed in other respects as well--a fact the
Justice Department has previously acknowledged and even offered
amendments to correct. These revisions include (1) authorizing
ex parte government requests for CIPA protective orders; (2)
restricting access to classified information obtained from non-
documentary sources; and (3) allowing interlocutory appeals
from any order for access to classified information.
If General Holder is content to rely upon CIPA to protect
the disclosure of classified information in this trial, then he
must do the responsible thing and insist upon these much-needed
revisions to the law, and we should enact them promptly.
CONFLICTS OF INTEREST WITHIN THE U.S. DEPARTMENT OF JUSTICE
Of great concern to us with the decision to bring KSM and
the others to New York for a domestic trial is the number of
senior Justice Department officials with the potential for
serious conflicts or, at a minimum, the appearance of such
conflicts of interest in the case, beginning with the Attorney
General himself.
General Holder worked as a partner at Covington & Burling
in Washington, D.C. before being appointed Attorney General.
According to the firm's website, it represents 16 detainees at
Guantanamo Bay. The head of the Department's Criminal Division,
Lanny Breuer, is also a former partner at Covington & Burling,
which reportedly owed Mr. Breuer many millions of dollars when
he left for the Justice Department.
Deputy Attorney General David Ogden was a partner at Wilmer
Hale, a firm whose website also boasts about its representation
of multiple detainees at Guantanamo Bay. Associate Attorney
General Tom Perrelli was a partner at Jenner & Block in D.C.
This firm too has a website boasting of the firm's
representation of multiple detainees. In Mr. Perrelli's case,
the conflicts are more real than apparent, as he has had to
recuse himself from 39 cases involving terrorism-related
detainees.
As a professor at Georgetown, Principal Deputy Solicitor
General Neal Katyal represented many detainees in ground-
breaking cases before the Supreme Court. Mr. Katyal, a
distinguished lawyer, is significantly responsible for getting
us to the point at which these detainees enjoy certain
constitutional rights. And he has been committed to getting
these enemies of the United States as many rights as possible.
Assistant Attorney General Tony West, who runs the Civil
Division, which defends the government in civil claims brought
by the detainees, including habeas claims, was a partner at
Morrison & Forester, which represents a Guantanamo Bay detainee
in a habeas case brought in Federal court in Washington.
We do not have a complete list of lower level political
appointees or of possible career appointees who might have some
responsibility for terrorism prosecutions or policy and who
have been hired by the Department since President Obama took
office. But we note that serving under Deputy Attorney General
are three former Wilmer Hale lawyers, Stuart Delery, Eric
Columbus, and Chad Golder; serving with Associate Attorney
General Perrelli are former Jenner lawyers Donald Verrilli and
Brian Hauck.
Finally, we wish to highlight the Department's hiring of
Jennifer Daskal, a harsh critic of U.S. policy towards
detainees, as a senior advisor in the Department's National
Security Division, where she serves on a task force for
detainee policy.
The potential for conflicts of interest here is great, but
the silence of the media and the Justice Department about this
issue is deafening. Can you imagine what the media and the
majority would be saying about Republican appointees whose
firms had represented companies with interests before the
Justice Department?
This Committee and this House have a duty to uphold our
Constitution and we should demand answers from the Justice
Department about these conflicts. Yet, here, with our national
security at stake, we have a scene from a cartoon, where one
hears only crickets chirping.
SECURITY DURING AND AFTER THE TRIAL
Trying Cases in New York City
According to Governor David Paterson (D-NY), ``This is not
a decision that I would have made. . . . It's very painful . .
. We still have been unable to rebuild that site, and having
those terrorists tried so close to the attack is going to be an
encumbrance on all New Yorkers.'' The Southern District Court
House is within walking distance of Ground Zero, City Hall, the
Brooklyn Bridge, NYPD Headquarters, Wall Street and the Battery
Tunnel.
The trial of Zacarias Moussaoui in Alexandria, Virginia,
demonstrated the risk posed to trial cities. Alexandria was a
scene of rooftop snipers, bomb-sniffing dogs inspecting cars,
identification checks, and heavily armed patrols. Replicating
this security presence on a larger stage in New York will come
at a huge cost to the Federal, State, and local governments and
enormous inconvenience and risk to residents and taxpayers.
Pretrial Detention
The Bureau of Prisons (BOP) operates all Federal prison
facilities in the United States. According to a 2007 letter
from the BOP to Members of Congress, the BOP would ``consider
the individuals confined in Guantanamo Bay to be high security;
therefore, they would require the highest level of escort
staff, type of restraints, and other security measures if they
were to be transferred into BOP custody.''\3\
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\3\Letter to Congressman Trent Franks from the Federal Bureau of
Prisons, U.S. Department of Justice, Sept. 10, 2007.
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BOP operates 15 high security penitentiaries in ten states:
Arizona, California, Colorado, Florida, Indiana, Kentucky,
Louisiana, Pennsylvania, Virginia, and West Virginia.
New York does not have a high-security Federal
penitentiary. It houses two medium security facilities, a
community corrections program, and two administrative-level MCC
facilities that function as jails (rather than prisons) by
housing pretrial Federal defendants and material witnesses.
These MCC facilities are NOT high-security facilities. The
closest Federal high-security penitentiary is the Canaan
Penitentiary in Pennsylvania, over 120 miles from New York
City.
The Administration may then call upon state and city
facilities near the U.S. District Courthouse in New York City
to house the detainees. Sing Sing is the closest state maximum
security prison to New York City and the U.S. District
Courthouse and houses just over 1,700 inmates.
New York City's Rikers Island is not a prison--it is a city
jail operated by the New York City Department of Corrections.
The facility, which consists of ten jails, holds local
offenders who are awaiting trial and cannot afford or cannot
obtain bail or were not given bail from a judge, those serving
sentences of one year or less, and those temporarily placed
there pending transfer to another facility. Rikers Island is
not a maximum security facility.
The costs associated with housing the detainees in either a
Federal, State, or city facility with sufficient security
protections for all of the pretrial motions, trial, sentence,
and appeals is unknown. But given the potential length of all
of these proceedings, it is fair to say it will be very costly
to taxpayers.
Transportation for Court Appearances
The transportation of Federal inmates and detainees is
coordinated through the Justice Prisoner and Alien
Transportation System (JPATS) within the U.S. Marshals Service.
JPATS transports sentenced prisoners who are in the BOP custody
as well as ICE criminal/administrative aliens to hearings,
court appearances and detention facilities. JPATS also provides
regular international flights for the removal of deportable
aliens. Military and civilian law enforcement agencies use
JPATS to shuttle their prisoners between different
jurisdictions at a fraction of what commercial sources would
charge.
On average, JPATS completes over 300,000 prisoner/alien
movements per year. A network of aircraft, cars, vans and buses
accomplishes these coordinated movements. JPATS operates a
fleet of aircraft which moves prisoners over long distances
more economically and with higher security than commercial
airlines. Nearly all air movements are done aboard large and
small jets that JPATS owns or leases. Ground transportation is
usually provided by the Marshals Service, ICE and the BOP.
As indicated by the 2007 BOP letter, the transport of the
detainees to and from the courthouse will involve high security
with high-level escort staff and additional security measures.
The cost of such measures and the disruption to New York City
traffic and regular courthouse business is unknown.
Post-conviction Incarceration
If the detainees are convicted, they will be incarcerated
either to serve their sentence or while awaiting execution.
Such incarceration would likely occur in one of the 15 Federal
high-security penitentiaries. Even detention at a very high
level of security may pose problems, including radicalization
of other inmates, assaults on guards (routine at Guantanamo
Bay), and efforts to escape or from the outside to free the
inmates. As FBI Director Mueller has testified before this
Committee, the prospect of keeping these offenders incarcerated
in a regular Federal prison poses many challenges and causes
concern.
Perhaps the most famous of these is the ADX facility in
Florence, Colorado--the Nation's only Federal Supermax
facility. ADX is home to some of the country's most notorious
criminals including Theodore Kaczynski (the Unabomber), Eric
Robert Rudolph (the Olympic bomber), Ramzi Yousef (1993 WTC
bomber), Timothy McVeigh (deceased OK City bomber), Zacarias
Moussaoui (9/11 co-conspirator), and Robert Hanssen (FBI agent
turned spy).
Most inmates at ADX are kept for at least 23 hours each day
in solitary confinement. They are housed in a 7 foot (2.1
meters) by 12 foot (3.7 meters) room, built behind a steel door
and grate. Their free hour is spent exercising alone in a
separate concrete chamber. Prisoners seldom see one another,
and the inmates' only direct human interaction is with
correctional officers or other prison staff. Visiting from
outside the prison is conducted through glass, with each
prisoner in a separate chamber. Religious services are
broadcast from a small chapel.
The 2007 BOP letter stated that
[T]here is not sufficient bedspace at any high-security
Federal prison to confine these individuals. Our high-
security institutions are operating at 55 percent above
capacity. There are approximately 199,700 Federal
inmates at present, and we are expecting the inmate
population to increase to over 221,000 by the end of
fiscal year 2011. The average yearly cost of confining
a high-security inmate in the BOP is approximately
$25,400.
We would most likely confine these detainees in one or
two penitentiaries. This would require us to transfer a
sufficient number of inmates to other penitentiaries in
order to create the necessary bedspace. Such transfers
would add to the cost of confining the enemy combatants
and would impose significant additional challenges to
our agency (based [on] the level of crowding in all
high-security BOP institutions).\4\
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\4\Id.
On December 15, 2009, the Administration announced the use
of a state prison facility in Illinois to house many of the
remaining detainees after the detention facility at Guantanamo
Bay is closed.
The plan being considered for the Thomson Correctional
Center, pitched by Illinois Governor Quinn in a meeting with
President Obama earlier this year, calls for the Federal Bureau
of Prisons to operate the Center as a high-security Federal
penitentiary and lease a portion to the Defense Department to
house fewer than 100 Guantanamo detainees.
The plans could include a purchase of the facility by the
Federal Government, Quinn said. The Thomson Correctional
Center, located about 150 miles (240 kilometers) west of
Chicago, was built by the state in 2001 and has 1,600 cells,
but houses only about 150 minimum-security prisoners. The
facility sits on 146 acres (59 hectares) and is enclosed by a
12 foot (3.6 meter) exterior fence and 15 foot (4.6 meter)
interior fence.
A preliminary economic impact analysis found that Federal
operation of the facility could generate between 2,340 and
3,250 ongoing jobs. The analysis estimates that the overall
injection of funds into the local economy would be between $790
million and $1.09 billion over the first four years.
The Federal high security penitentiary in Terre Haute,
Indiana currently houses the death row for Federal inmates. If
KSM and the four other plotters are sentenced to death, they
will likely be detained in the Indiana prison. If they do not
receive the death penalty, they may be housed in the ADX
facility in Florence, Colorado, or perhaps the new facility in
Illinois that is being proposed to house other Guantanamo Bay
detainees.
IMMIGRATION AND DEPORTATION ISSUES
If the Administration brings foreign terrorists to our
shores from Guantanamo Bay, we may never be able to deport
them. Even worse, we may not be able to even keep them in
immigration detention and off our streets. Even if we manage to
convict these terrorists, they may one day become our
constituents' new neighbors. How is this possible? Because of
the confluence of two factors--1) the Convention against
Torture and 2) the Supreme Court's 2001 decision in Zadvydas v.
Davis.\5\
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\5\533 U.S. 678 (2001).
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The Convention prohibits the return of aliens to countries
where they may be tortured. The Department of Justice's
regulations implementing the Convention made no exceptions
whatsoever--rapists, murderers, participants in genocide and
terrorists are equally protected. Hundreds of criminals have
already received relief from deportation as a result of the
Convention--and so has an alien involved in the assassination
of Anwar Sadat.
Osama Bin Laden himself could probably frustrate
deportation by making a Convention claim. After all, the more
heinous a person's actions and consequently the more hated they
are in their home countries, the more likely that they might be
subject to torture.
The ability of terrorists to frustrate deportation might be
barely tolerable if we were sure we could keep them detained.
But even this may not be the case. Section 412 of the PATRIOT
Act does wisely provide for the indefinite detention of
terrorist aliens, regardless of whether they qualify under the
Convention against Torture or have other available relief from
removal. However, it is very possible that the Supreme Court
will rule this provision unconstitutional.
In Zadvydas, the Supreme Court ruled that under a different
law, aliens who had been admitted to the U.S. and then ordered
removed could not be detained for more than six months if for
some reason--such as the Convention against Torture--they could
not be removed. In Zadvydas, the Supreme Court made a statutory
interpretation. However, the Court stated that it was
``interpreting the statute to avoid a serious constitutional
threat.'' The Court believed that ``[a] statute permitting
indefinite detention of an alien would raise a serious
constitutional problem.''
Already, the Zadvydas decision has resulted in the release
of hundreds of alien criminals into our communities. Jonathan
Cohn, former Deputy Assistant Attorney General, has testified
that ``the government is [now] required to release numerous
rapists, child molesters, murderers, and other dangerous
illegal aliens into our streets. . . . [V]icious criminal
aliens are now being set free within the U.S.''
It seems incredible that the Administration would
intentionally bring alien terrorists into the United States,
knowing that we may never be able to deport them, or even
detain them on a long-term basis.
CONCLUSION
We introduced this Resolution of Inquiry to request Justice
Department documents that would inform Congress what extra
constitutional and legal rights will be afforded these
terrorists once they are brought to the U.S. for criminal
prosecution. This resolution also requests documents relating
to the detention, transportation, and incarceration of these
terrorists before, during, and after the trial.
The decision to try KSM and the other 9/11 plotters in New
York is not based in legal precedent or grounded in national
security considerations. It is based on the liberal ideology
that terrorists deserve the same rights as citizens. We
introduced this resolution because we fear the Justice
Department failed to consider--or chose to ignore--the myriad
of issues raised by this decision, only a handful of which are
addressed herein. Unfortunately, the majority chose to reject
its well-established oversight responsibilities and instead
continue to blindly rely upon the assurances of General Holder
that America will not regret this decision.
Lamar Smith.
F. James Sensenbrenner, Jr.
Howard Coble.
Elton Gallegly.
Bob Goodlatte.
Daniel E. Lungren.
Darrell E. Issa.
J. Randy Forbes.
Steve King.
Trent Franks.
Louie Gohmert.
Jim Jordan.
Ted Poe.
Jason Chaffetz.
Tom Rooney.
Gregg Harper.