" the way in which the counsel for folks at guantanamo are treated. these are good americans who are trying to do the right thing. they are -- they aspire to the

highest standards and principles of their legal profession. and for some reason or another they come away feeling very disturbed by the way they've been treated by their own government. >> since xhi from a corporate law firm, they call me directly. >> you understand? >> yes, and they're not shy about that. so it's something i'm very sensitive to. >> thank you, chairman. >> senator hatch has a follow-up question. >> yeah, i've been concerned about this miranda matter. while i know both of you stated that miranda warnings should not be provided to detainees captured on the battlefield, that does not address the fact that there would be some miranda problems, especially if article 3 courts, you know, are to be the preferred venue for prosecution. i staunchly oppose any notion that troops in the middle of the battlefield be required to

administer warnings to captured combatants. but can either or both of you give me what is a battlefield in the context of current -- of the current conflict. well, let me stop there and then i have one question i'd like to ask. >> senator, i can offer to the committee for the record a letter that i wrote to the chairman of the house armed services committee last week on this issue. what i can say to you is that u.s. military is not providing miranda warnings to people that they capture. that's not their job, and i would have a lot of three and four-star general clients all over me if i even remotely began to suggest that our troops do that. and the only circumstance under which that happens is where the law enforcement prosecution option is one that's being

considered and we have exhausted military intelligence collection options with respect to that particular individual. as to your question about what constitutes the battlefield, obviously, given the nature of this conflict, there's no easy answer to that question. anybody who tried to give you an answer answer to that question, i suspect, would be overlooking a lot of complexity. the mission is to capture and engage the enemy. >> i would just say more generally, senator, it's important to distinguish between rules of admissibility and prosecution for whether it be a commission or article 3 court and primary conduct on the ground. when it comes to the primary conduct, the paramount concern always has to be safety and force protection and intelligence collection. it may be that some statements in some situations may not be admissible, but you wouldn't want to compromise the safety of

our troops on the line in order to preserve that for down the road. >> i agree with that. but any first year law student will tell you miranda is triggered when a suspect is in custody and is asked questions that will elicit a response that may develop in culpatory statements or evidence. given that some of these detainees have been in custody since 2002, what is being used to evacuate the veracity of previous statements they've made since being in custody, and how does the government plan to cover the admissibility issue of these statements in the article 3 courts? >> well, again, we may or may not be able to overcome those admissibility concerns in any particular case. if we can't, that may be a factor that bears on forum choice. i don't -- i can't say that in every case, every statement will be admissible under whatever standard ends up applying either in article 3 court or in a military commission. >> would you be forced to let them go free then?

>> no. i think you have to consider other evidence that's available against them. these cases don't depend entirely on statements of these people. there's, you know, there can be other evidence and prosecutors are used to working around those kinds of concerns when evidence is suppressed in any kind of environment. so you just have to work through each case one at a time and figure out what you can do. >> thank you. >> absolutely. >> let me just get the numbers straight on a couple of dates. you are indicating you will complete the review of the detainees at guantanamo bay this fall? >> that's the expectation, yes. >> and that to date, somewhere -- significantly higher than 50 of the 240 you anticipate transferring to other countries or relocating? >> substantially more than 50 have been approved for transfer. >> already approved. that's right. i'm sorry. >> and there's a significant number that you are already pursuing article 3 prosecution,

criminal prosecution. >> they've been referred for evaluation by doj and dod prosecutors jointly under that protocol. >> so it could be article three or could be military commissions. >> or in some cases we might conclude couldn't be prosecuted and we'd get thrown back but essentially, yes. >> has there been any determinations yet of those that will be recommended for indeaf findeaf indeafinite detention? >> no. >> will the decision to put somebody in the fifth category also be made by the attorney general in consultation with the secretary of defense? >> that's not an issue that is covered by this protocol. i think that's probably a broader cabinet level, principal level or presidential decision that wouldn't necessarily just be confined to those two particular. >> so that decision has yet to be made. other than the president's statements there would be due process review of individuals placed in this category.

>> yeah. it's conditional if we end up with people in that category. >> if we end up -- >> yeah. >> i understand it that you recommended that the military commission bill, senate bill, be amended to include a sunset provision. could you explain why you believe there should be a sunset provision in this? >> the main reason, i guess, is that traditionally, military commissions were used in the context of a particular conflict. this particular conflict may be unlike most others if not all others that we've dealt with with respect to how long it may endure. and so if you tie a commission to the duration of the conflict but you now have a relatively open-ended conflict, it made sense to us that after some number of years, congress come back and take a fresh look and see whether we've learned something, whether things need to be changed. that's the main thinking behind

that. >> i generally support sunset provisions, but it seems to me we do want to get a process for military commissions in place with some degree of confidence and predictability. if the conflict -- if there is no longer a need in regards to this particular conflict to continue military commissions, your recommendation would to be allow the sunset to take place? >> i don't necessarily want to go that far. all i'm saying on behalf of the administration is sunset is a mechanism that would compel and allow congress to look again at commission. see maybe they should be continued. maybe they shouldn't be. maybe they should be reformed in some way. i think we're going to learn things going forward here and after a certain number of years it may be appropriate for congress to take a second look. but i wouldn't want to prejudge any particular outcome at that point. it would really depend on what we find.

>> as you go forward, we would like you to keep the judiciary committee informed as to the numbers that are likely to be referred for prosecution, both article three and military commissions. and what procedures are being used in the event that you will be determining people need indefinite attention. obviously, where i know you'll have to submit a plan to congress as to where those individuals will be maintained if there is no guantanamo bay. >> i understand senator hatch may have asked you the question about whether given the fact that we're going to have now a presumption for article 3 jurisdiction or at trials, it would not necessarily increase the situations in which miranda warnings are given. if i mistake this, correct me. my understanding was the case-by-case analysis in any

event does not occur until after whatever questioning by the military intelligence or other related departments or agencies might be. if that is true, wouldn't this -- if that is true, even though you can have an article three trial with testimony admissible despite no miranda warning, it makes it much more difficult, i believe, and, therefore, doesn't that diminish the number of cases in which it could result in an article 3 court trial? >> that question got kind of convoluted. if you want to restate your understanding of it, that's fine. >> i think i understand you. it's certainly the case as mr. johnson said, that we need to take care of immediate intelligence and force protection first. >> right. >> nobody wants to sacrifice the safety of our troops. >> right. >> second, i think we need to be strategic about this. but if we find that we have

information that's very valuable in inculpatory but wasn't preceded by miranda warnings, obviously, that will be a factor. obviously, what outcome will follow from that in any particular case would depend -- and i guess this is the theme i keep returning to. depend on all of the facts of the case. >> but let me just -- >> but it will -- >> one of the key facts will be whether miranda warning was given because that will have a lot to do with whether evidence is admissible. is that not correct? >> i'll address my questions to either one of you. >> go ahead. >> i thought you were talking to him. >> i'm sorry. i kind of was. whichever one of you wants to answer is fine with me. the question is -- well, let's do it in order. are there -- is it true that in order to get an article three prosecution it's a whole lot better to have a miranda warning if you're going to rely on

statements given by the defendant? >> yes, it will be better. of course, there are exceptions. the public safety exception is important, too. but i take your basic point, yes. >> so given -- now is the presumption for an article 3 trial, therefore, going to override what i heard you to say was the preeminent concern that whichever battlefield intelligence questioning needs to occur will occur first without troord how the case is ultimately going to be disposed of? >> if i understand you, i think the answer is clearly not. we would want to gather intelligence and protect our troops as the paramount concern and then see what we can do. >> seek whatever information you need to in the beginning to gather the troops and gather intelligence. second now is a change in the

hierarchy of values. after that, the next presumption is that the case should be an article three case, if possible. >> again, i think i understand where you are going. my only quarrel with this is it starts to become a little too rigid for what i think is the varied and complex ground truth that we encounter out there. the way i would put it is, we are interested in protecting national security using whatever tool is best for the situation and that will vary quite a lot. there are some principles and the one we talked about earlier about force protection and immediate intelligence gathering. but i think it is dangerous to start adopting these abstract principles too much in advance because the reality is more messy than that. >> i understand that. but what we're getting at is it's going to be really hard to get an article three prosecution if you don't give miranda

warnings. if the presumption is the case will be article three cases, not military commissions, then by definition, you'll have to have given miranda warnings in most of them. >> and if that's the case, then that directly conflicts with the first priority, which is getting good military intelligence because once you give a miranda warning, you'll probably not get a whole lot, at least in most cases. so doesn't this change in presumption potentially work its way up the chain and conflict with the first priority, which is to get military intelligence? >> senator, let me try to answer that. >> sure. >> by reading to you a portion of the protocol that's been worked out between doj and dod. there's a presumption that where feesible, referred cases will be prosecuted in an article 3 court. in keeping with traditional principles of federal prosecution, nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military

commission, it may be prosecuted there. and then we go on through three sets of factors to evaluate with each case. i'll just read one of the three sets.h6z&z&z&z&z&z&'z&z&z&@ r or by the intelligence services, cia or whatever it might be, if they're not routinely giving

miranda warnings, and i gather they would not be, even though there may be a presumption to try to get prosecutable cases into article three courts, the reality is without miranda warnings haven't been given in most cases, the presumption is probably going to be overridden on that factor alone in many, perhaps the majority of cases. >> i would hesitate to try to predict how the cases are going to shake out in response to your question. i do know that this protocol was worked out with sufficient flexibility to take account of that and other issues so that we have both avenues of prosecution available for dealing with international terrorists. >> yeah. >> by the way, i think everyone is in favor of having both avenues available. and i'm not arguing with the priorities here and so on. but i think i have trouble understanding how you could get to the situation where you have a lot of military commissions as

opposed to -- a lot of article three trials as opposed to military commissions, if, in fact, there is not a fairly early miranda warning given in this situation. >> i mean, i guess -- two things. if you have a situation in which the guy doesn't talk, you don't mirandize him. if you have him on video, eyewitnesses or whatever, there may be a situation where the statements don't, obviously, make any difference. the other is while we do want to be strategic about this and we try to sort of anticipate the end game of the process at the earliest possible stage, that's only sensible, i think the concern you are getting at, and i think it's a fair one is you don't want the tail to end up wagging the dog. and i do think that's a legitimate concern. but i think we have enough flexibility under this protocol to take that into account and guard against it. >> if i could just suggest in the interest of time here. we have another panel we want to get to. anything else you'd like to add to the record that further

clarifies this if you think it's necessary, we'd be happy to receive it. because i think it is an interesting question that's raised and we could perhaps answer some questions our colleagues might have about this if there's anything else you want to supplement the record. >> i thank senator kyl for that. i request you keep us informed. if there's other information you believe we should have for part of our record. i suspect this will not be the last hearing we'll be having on this subject. this is an evolving issue, and one which is certainly challenging to the department of justice and the department of defense. and we thank both of you for your service and for your testimony here. we'll now turn to our second panel. let me introduce the second panel as they come forward. first we have david laughman. now serves as partner with kelly, dries, white collar crime

and litigation practice group. he served an assistant u.s. attorney for the eastern district of virginia where he specialized in prosecutes terrorism, espionage and other national security cases in 2005 served as the lead trial council in the government's successful prosecution of ahmad omar abah ali known as virginia jihad case. this case involved an american citizen who was convicted of providing material support and resources to al qaeda conspiring to assassinate the president of the united states, conspiring to hijack and destroy aircraft and other charges. he was just recently, i think yesterday, sentenced to life imprisonment. our second witness is deborah pearlstein. she joined the woodrow wilson school for public and international affairs at princeton university in 2007 as an assistant research scholar in the law and public affairs program. from 2003 to 2006, she served as the founding director of law and security programs at human rights first where she led the organization's efforts in

research litigation, advocacy surrounding u.s. detention and interrogation operations. among other projects she led the first monitoring mission to guantanamo bay, prepared a series of briefs to the united states supreme court and co-authored multiple reports on the human rights impact of u.s. national security policy. she was appointed in 2009 to the american bar association advisory committee on law and national security. and our third witness is michael edny. he's a counsel to the washington, d.c., office of gibson, dunn and crutcher. from 2007 to 2009, mr. edny was a white house legal adviser to president bush's national security counsel. he assisted in coordinating the administration's response to national security legal issues and controversies. his principal focus was national security related litigation and congressional oversight. mr. edney previously worked in the justice department office of

legal counsel. we welcome all three of you to the committee and we appreciate very much your willingness to testify. as is the tradition of our committee, if you'd please rise. i'll administer the oath. do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? thank you very much. please have a seat. mr. layoffman, we'll start with you. >> thank you, mr. chairman, senator kyl. thank you for inviting me to testify here today. yesterday morning in an alexandria, virginia, hear on

guantanamo bay. going back there now. >> the most dangerous of these terrorists are serving their sentence at the supermax facility operated by the federal bureau of prisons in florence, colorado. congress has ignored this history of experience. it has also ignored the department of justice's regulatory authority to tighten security for individuals who either are being detained pending trial on terrorism related charges or have been convicted of such offense. under federal regulations, the attorney general has broad discretion to impose special administrative measures that severely restrict the detainees' ability to engage in conduct while incarcerated that could present a national security risk, including restrictions on contact with other inmates, even group prayer with other muslim inmates and with the outside world. as the obama administration and congress grapple with resolving the detention of prisoners in

guantanamo bay it is essential to create a legal architecture that gives the executive branch flexibility in determining whether and where to bring terrorism prosecutions. one option that must be preserved, among other options with regard to guantanamo detainees and future cases is the criminal prosecution of detainees in federal courts. in its preliminary report issued on july 22nd, the detention policy task force recognized the importance of preserving both criminal prosecution and military commissions as options for the government in determining where to prosecute individuals accused of engaging in terrorism. the task force identified three broad sets of factors that the government will employ in determining the appropriate forum for a terrorism prosecution. the factors identified in the task force's preliminary report reflect a recognition while criminal prosecutions may be generally desirable, certain terrorism cases either should not or cannot be brought in

article three courts. in my judgment, these cases include cases where the defendant is accused of committing crimes against humanity or war crimes or evidence was gathered in the battlefield by u.s. or foreign military or security services, where the government's key inculpatory evidence is based on sensitive intelligence sources and methods that either should not be disclosed to the defense or cannot be revealed in a public trial or where statements critical to the government's case were obtained through coercive means. in such cases, mr. chairman, where the government has made a finding that the evidence against an accused is both probative and reliable and that release, repateeration, rejudecation in an appropriate third country is not an option. the government must have recourse to an alternative legal forum such as a military commission subject to oversight and under rules that balance a defendant's right to a fair proceeding with the government's legitimate right to protect national security interests.

president obama was wise -- pending procedural reforms. i commend you for holding today's hearing and i urge the subcommittee to follow a course that enables the administration to bring detainee and other terrorism cases in criminal courts without restriction while preserving its ability to bring prosecutions and military commissions where appropriate. thank you. >> thank you, mr. laufman. ms. pearlstein. >> thank you chairman cardin, senator kyl, members of the subcommittee. thanks for the opportunity to testify on this important subject. the preliminary report of the administration detention policy tsk force announced the administration's intention to use reformed military commission proceedings to retry some fraction of the detainees currently held at guantanamo bay. while i continue to doubt that the use of a new military commission system is a necessary course of policy, i also believe that it is possible to conduct

commission proceedings for certain crimes in a way that comports with u.s. and international law ensuring that any future proceedings meet thoke@@@@@á,)a'$)"b"rr

comply with relevant law. i ask that testimony be incorporated into the record here if that's possible. >> without objection. >> thank you. in addition, i think it's critical that any new legislation regarding military commissions, include a sunset provision or other structural mechanism to ensure that the commissions are strictly limited in purpose and duration. such structural limitations are essential not only to bolster the commission's already tarnished legitimacy but to ensure their constitutionality. as the supreme court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under article three. in keep with this constitutional presumption, the extent to which the supreme court has approved the use of article one courts has been extremely limited. military commissions had historically been courts of necessity, not efficiency. recognized only in a limited set of circumstances. the only one of which this relevant here is when commissions are in the words of

the supreme court, incident to the conduct of war. in this respect where a new commission system -- whether because the offenses charged are not war crimes under international law or because the commission itself appears to extend its mandate beyond events occurring within the period of war as recognized by international law it may be more vulnerable to challenge the exceeding congress' authority under article one. absent clear of formal recognition in the commission's statute that military commissions cannot exercise jurisdiction over every crime committed at any time, congress may not only exceed its constitutional authority, it will have created, in my judgment, a standing national security court by another name. finally, let me say a word about the administration's proposed protocol for selecting where guantanamo cases should be prosecuted. any such protocol some reflect two central principles. first, military commission trials may be considered -- may only be considered at all in

those cases in which prosecutors have probable cause to believe that a specifically defined war crime has been committed and that evidence admissible in the commission forum will sufice to sustain a conviction. in the absence of either one of those two findings, none of the other considerations identified in the protocol. the gravity of the alleged conduct, the relative efficiency of the formum, foreign policy concerns and so forth are relative to the prosecutorial decisions in choosing a forum. independent professional prosecutors must arrive at clear and affirmative answers. that is probable cause of a war crime and evidence sufficient for prosecution before the protocol is even invoked. second, the administration stated presumption in favor of prosecution in article three courts must include guidance that makes it clear for prosecutorial decisionmakers why and to what extent it exists and how it should be implemented. such a presumption is consistent with and compelled by the structure of our constitution which recognizes article three courts as the default setting

for criminal trials of nonservice members. it is also essential as a policy matter to limit the strategic damage continued use of military commissions seen likely to cause. the president has wisely recognized that guantanamo has had the efeskt expanding the bafs al qaeda recruits. just as with the guantanamo detention system in general, the taint of unfairness extends to the process in particular. whatever tact gal gain may be achieved, will bring a strategic cost of conducting trials under a system many will likely continue to see as lacking legitimacy. as the president himself appears to believe, the united states has already suffered significant strategic losses in the global struggle against terror. it is in our national security interest to minimize those losses going forward. the single biggest threat to the legitimacy of the military commissions is the danger the commissions will function in perception or reality as a second class form of justice for cases involving evidence insufficient to prevail in prosecution and a traditional

article three setting. adhering closely to constitutional standards of evidence and fiercely protecting prosecutorial evidence, these are indispensable safeguards. thank you, and i look forward to your questions. >> thank you very much. mr. edney? >> thank you, chairman cardin, ranking member kyl, for the opportunity to come and address this important issue today. you have my written statement. i just wanted to highlight a few key points before we get started with the questions. after the president's may 21st speech to the nation, it's becoming clear that there's an emerging consensus now between two administrations that some form of military commissions is necessary for the prosecution of members of al qaeda, specifically the ones at the guantanamo bay facility. at the same time in fewer than six months, the president's deadline for closing guantanamo will arrive. we have not heard from the president's task force on how that will be handled. but what we do know that there

are more than 220 detainees at gun taun mow today. just about 15 fewer than there were when this administration started. and almost inevitable that al qaeda detainees, maybe hundreds of them, will end up in the united states. some will be here, held as enemy combatants. some will be tried in federal court. some will be tried by military commission. and that's the topic at hand today. an issue that congress will have a significant role in. i want to address briefly the considerations -- the legal considerations that would help in choosing between federal/criminal trials and military commissions. first that choice needs to address classified information. classified information is the forefront of any trial involving al qaeda operatives. our nation's military intelligence services have conducted significant surveillance, especially against the highest level individuals in the al qaeda organization. these are the people we're talking about down at

guantanamo. and they've done this to protect the american people. so classified information, any way you look at it is going to be either using the government's case or be relevant to what the defense wants to say. the fundamental principle here we hind the military commission rules on this is to avoid forcing the government into a very difficult choice between revealing classified members -- information to members of an enemy force during the time of armed conflict and holding them responsible and accountable for violations of the law of war, including the 9/11 attacks on this country on the other hand. the military commission's act allows for an important check by the judge on the reliability of underlying intelligence sources and methods. without revealing every intelligence activity behind the evidence. the same time the defendant receives every piece of evidence that the jury sees. and he is entitled to all

exculpatory evidence, classified or not, unless there is an adequate substitute for him to prepare his defense. these are special procedures for a continuing war. the rules and criminal trials identified by the classified information procedures act are not that. they aren't tailored to a continuing armed conflict. that law was passed for very different circumstances. if you go back at the -- look at the history of that act you'll see it. it was to try u.s. government officials for espionage. these people were walking repositories of classified information and we wanted an orderly system for the government to have notice when they intended to bring some of this classified information out at trial. if we're going to go down the path of trying dozens of guantanamo detainees in federal court, we need to take a critical look at these rules that are now in federal court under the classified information procedures act. it is no answer to say that

federal courts are ready because of a law passed 29 years ago for a very different purpose. second, there has been significant discussion today, and is the primary focus of the testimony earlier, about how we sort guantanamo detainees between federal criminal trials. the administration says there will be a presumption of federal court trials unless the evidence is too weak or the classified information is too important in which case a move back to the military commission system may be considers on a case by case basis. this approach, i believe, may be a threat to the integrity of both the military commission system and the federal criminal justice system. this is something senator feingold pointed out earlier. it sends a message that the rigorous procedures in federal courts for criminal trials matter until they matter or, in other words, they'll be followed

until they make a difference in the particular case at which point we'll move to another system of justice. for military commissions, the message would be that those proceedings are a type of secondary justice, not to be respected. and i think we can have no doubt when it comes to defending the military commission system in the appellate process that that message will be taken by the judges that review it. a better approach would be to designate a class of cases for one system or another. the quality of evidence in any particular case aside. try all members of al qaeda who are aliens who have violated the laws of war and military commissions. justify that choice on history, tradition and the necessities of armed conflict. or try all of those individuals in federal courts. but the least preferable option is to sort them on the strength of the evidence to come up with a compromise solution, a sliding scale, that applies to particular cases as we -- as we

move through the process. third, congress needs to consider the legal consequences of where military commission trials are held. and this is something that is an impending issue for this body. because unless the president changes his deadline, these new military commission trials will be held in the united states, not in guantanamo. and when the military commissions act was passed, while that was a possibility it was not at the forefront of the consciousness of this body. one legal consequence of holding those trials in the united states is the scope of the constitutional rights that will apply. the more constitutional provisions applicable, the more options are available to congress in developing rules for these trials. in the united states, territorial arguments against the application of certain constitutional provisions would be wiped away once these military commissions come here and that will have all sorts of complications. everybody on the panel today talked about the need for some

rules for hearsay. there's a broad consensus on that. but i think those would be the first to fall if the trials were held here in the united states in full constitutional guarantees apply to those proceedings. if the confrontation clause applies, the supreme court's recent decision in craw fortd versus washington would suggest that a safety valve for hearsay depend on reliability assessments by trial judge would be invalid. another consequence would be taking away congress' exclusive discretion as to whether guantanamo detainees are released inside the united states. the power to allow entry into this country rests exclusively with this body under the constitution's naturalization clause in article 1 section 8, clause 4 of the constitution. and a court would be extremely unlikely to order entry after a military commission acquittal. but once guantanamo detainees are here, that's no longer a power that congress will have. it will be up to other branches. thank you again for the opportunity to testify. i look forward to the panel's

questions. >> well, thank you all three for your testimony, your addition to the record. i want to start with the first point where there's a difference, i guess, between mr. edney and mr. laufman and ms. pearlstein. and that is, if we bring these detainees into the united states, and i think it's difficult to argue that this is not a problem that the united states can avoid being part of the solution. we're not going to be able to get other countries to handle all the team at guantanamo bay. we're going to have to assume responsibility for bringing these individuals to justice. and if we use our article three courts, they're going to be here in the united states. i think it is clear that we can safely detain and incarcerate these individuals here in the united states. i don't really think that's an

issue as we've been pointed out by my colleagues. there are hundreds of convicted terrorists currently in our prison system. the issue, mr. edney, that you raise is that if they are found to be not guilty or there's insufficient evidence, or they're here, whether it's a military commission or a trial, article three court, what do you do if they're not convicted or one day they complete their sentence, whatever that sentence might be. and they are released. do we give up our ability to require they leave our country? i don't think we do. i thing immigration laws are such that there is no responsibility for them to be allowed to remain in the united states, particularly when they have violated any of the standards that's we would allow someone to come into our country. so i think we can ask them and

require that they leave our country. i think congress has spoken to that. we're waiting to hear the administration's plan. and we expect that that@@@@@@@ r that would reduce their standing to stay in this country.

i think it's important to keep in mind one of the challenges are reducing the guantanamo population has been finding countries willing to take these people because of the assessment of those third countries of the dangerousness of those individuals. perhaps more importantly, finding places for some of these individuals, where they would not be mistreated. once they're in the united states, we actually have a legal obligation under the torture statute and under the convention against torture not to return an individual to a place where he or she will be mistreated. >> part of our commitment. i acknowledge that. but let me take issue with one point. i've talked to representatives from other countries concerning this issue. and one of the points they raised to me frequently is that, fine, we're willing to do our part, but is the united states willing to take on a

responsibility within its justice system? and i'm talking about nations in which there is no question they'd respect international human rights in regards to the manner in which they'd handle these transfers. so i think it is an issue that the united states has to be prepared to deal with. we are. we're transferring some now for trial. i think that's going to happen. but i think you raise a legitimate concern. may well be that we need to change the law to deal with what happens in the eventuality that these individuals ultimately are released from our criminal justice system, strengthen the laws in regards to deportation. >> if i could just -- >> change it before they arrive. because once they are here, rights will attach and it will be difficult to take them back. >> we might have to. >> i would differ slightly. i agree, absolutely with your premise. this particular problem is solvable. i think it may already be

solved. and that is -- let me just highlight two distinctions. first of all, the -- the u.s. obligations not to send anybody back to a country where they are likely to find torture, it attaches already in guantanamo bay. and whether they stay in guantanamo or come back here, we are under that obligation. and i think the evidence of that is reflected in the fact that the last administration, like this administration, thought they can't send the guantanamo bay detainees back to places like china or wherever to face prosecution. so those exist whether they are in guantanamo or whether we bring them to the united states. so that doesn't make a difference. with respect with what to do if a detainee is brought to the united states for trial is acquitted or convicted and then serves his sentence, under immigration laws, as i understand them as they exist, that person is certainly deportable. not only are they deportable.

we can continue to detain them while deportation proceedings are pending. so there is, in my view, simply no risk that a federal court would then immediately order the release from supermax facility in colorado. >> i think that's the concern of people in this country. there's the concern that the terrorists that are currently at guantanamo bay could be released in the united states and i think that risk is not there if we follow the procedures we're talking about. >> the alien removal statute is that authority that ms. pearlstein is speaking about. allows them to detain foreign nationals who presented national security risk. there's no specific time limit by law on how long the government can detain people for national security reasons. there was a supreme court case a few months before 9/11 where the

court even made about or the necessity to detain foreign nationals longer under the alien removal statute where there were national security grounds to do so. >> if you go back to that case, they held that question open. i don't think we know how the supreme court is going to rule on that, and the zadvidas decision places a heavy thumb on releasing people who can't be deported within six months. so that's a risk we're running, constitutional litigation. >> may i just make this observation? i think there is no opposition at all in congress to making the laws as clear as can be that terrorists are not going to be released in the united states. i think we need to strengthen the law. i think that issue can be handled. i think i agree with ms.

pearlstein. i think it's already clear. but if we have to make it stronger, we'll make it stronger. assuming we go through trials, assuming that there are detainees that become incarcerated in the united states, either awaiting trial or during trial or after conviction, ultimately, if -- there comes a time when they are eligible to be released, they'll not be released in the united states. one way or another, they'll not end up in our country. they're not citizens of america. they have no rights in that regard. let me turn it to senator kyl. >> let me ask, and if you can, a yes or no answer. on this last point. do you agree that it was senator cardin's statement right now that if the united states brings someone from guantanamo to an article three court and for whatever reason they are at some point released -- are deemed no longer imprisonable, the case is

dismissed, their sentence has been served, whatever the situation. at that point, there's no constitutional issue having been brought to the united states and being in the united states that the united states could hold them indefinitely in the event that we couldn't find a place to send them. that there is no constitutional issue, no constitutional right for that detainee to be released after a period of time. do you agree with that? >> make sure i understand the senator's question. would there be a constitutional claim by someone in the united states having served his sentence, for example, with the existing immigration laws that allow us to hold an individual who is deportable? >> if it's a foreign national, i don't believe -- if it's a foreign national, i don't believe the individual would

have a credible claim that he cannot be detained under the alien removal statute. the boundaries of how long that detention can take place may be questionable. >> do you agree with that, ms. pearlstein? >> i agree that it's an open question. you know, without any legal authority, to continue to detain somebody, they just need to be deported and we have no place to send them. could we continue to detain them beyond six months, a year,them, detain them? the supreme court has never occasion to rule on that particular question. when it left the question open, it said it may be that terrorism and security cases are an exception and this is a case before 9/11. >> your view? >> i think there's a substantial risk, senator, that they would have a constitutional claim for release in the united states and if it is a constitutional claim that it's -- we can pass all the legislation in the world and we

can't do anything about it. >> right. thank you. can you edify us at all on the statements made earlier that there will be three convictions in the military commissions out of guantanamo? what are the reasons for that? >> well, the -- and i go over this somewhat in my written statement that there's a long history behind this. when the military commissions really got started in earnest after captures they got started in about the 2003, 2004 period. and they were immediately caught up in constitutional challenge and stayed for almost three years. well over two years. resulting in the supreme court's decision in 2006. then it took time for the congress to respond. to pass the military commissions act. develop rules under the military commissions act which weren't

completed until january 2007. through yoman work by the executive branch and the congress. an of that, charges started to happen and by january 2009, nearly 24 people had been charged by military commission under the mca. even in that period, there was at least seven or eight months that was held up in jet another jurisdictional challenge that got resolved in september 2007. so because of all the higher court litigation, the military commissions really haven't had a chance to get working until the very end, until they were suspended on the day after president obama was inaugurated. >> are you familiar with how many of guantanamo people, that is to say, alleged enemy come bants detained at gath tan no have been detained or

successfully convicted? >> could you rub that by me again? >> how many of the detainees have been successfully convicted under article iii? >> none. i listened to senator durbin's commentary on this. you know, there have been a lot of people that have been convicted in arl iii courts of terrorism offenses. the people of guantanamo are a little bit differently situated. we have now al qaeda leadership. and one feature about al qaeda leadership without telling anything that should come as a surprise to anybody is that they're heavily surveilled and makes things awfully complicated with trying them. they are really in a class by themselves. add on top of that many of the prior cases to come in the time of continuing armed conflict and protecting the country and be on the offensive against a

terrorism organization. >> i had a question. you quoted the president's statement at existence of guantanamo likely created more terrorists around the world than ever eliminated. i was intrigued by the president's allegation and i sent a letter to general jones and asked him for factual support for the statement. i haven't received any response from the administration and since you referred to it i wonder if you could provide some factual support for the statement or quantify how many or who you are referring to. >> i'm not sure that that was in my statement but i'll say to the senator that it's been my observation of talking to people in the intelligence community and even i had the opportunity in saudi arabia 18 months ago to meet some detainees released from guantanamo then in a saudi jihadist halfway house program, if you will, to speak to them

about what had led to the radicalization, what had helped to form them as the extremists. and some of them talked about abu ghraib and guantanamo bay and hard to form any hard and fast solutions from that but i think it's fair to say that guantanamo became a jihadist pr propagandist tool. >> i misspoke. that was in miss pearlstein's statement. my time just expired but i think i could ask, can you provide some enlightenment on the basis for the statement? >> sure. the basis of the president's statement is what you're asking. you know, obviously i don't have any personal knowledge of what the president in particular was basing his statement on. the reason i believe the statement is several fold.

and i would caution it's difficult to quantify. we don't have any way of having any knowledge of what the worldwide population is of al qaeda members currently but the evidence i found most persuasive in this respect were at least threefold. first is testimony in the last few years by people like alberto marrow and senior leadership of the military who said on the battlefield in iraq that was at the time in particular the two single things they thought were putting the troops most in danger were guantanamo and abu ghra ghraib. that's one piece of evidence and the individual testimony of those folks are sort of on the front line i found quite telling. >> the assumption is that people withholdn who wouldn't have other been