the attack on our consulate in benghazi, former guantanamo detainee, but i'd like to get your answer to that. what i'd like to understand is the 6.8% of the administration is touting that they're doipg so well. those are only the cases of confirmed detainees that have reengaged. does that number include the taliban five member that has been now reported to have engaged in additional activity that would be reengagement for terrorism? >> predates the reengagement status of the members you're talking about. the next report due out, updating the numbers on this is due out in early march. we should in a position to assess whether reengagement has taken place. >> of course, on may 31st the administration, of the five they transferred, they transported

fazel, a member of the the taliban five. he commanded main force opposing the u.s. backed northern alliance in 2001. served as chief of staff for the army under the taliban and accused of war crimes. one of the taliban commanders on the ground said it was the best news he had heard in 12 years. he said his return is is like pouring 10,000 taliban vit fighters into the battle on the jihad. now, they have the right lion to lead them in the right moltment in victory. i think the american people deserve to know whether any of the taliban five have reengageded. i'm glad you've confirmed today there are -- returning after the year to afghanistan. in other words there aren't additional information on the release unless you're telling me they are. that's my question for the people who have been released in the last months by the administration and i'd just like to ask you, with some of them

on november 5th of 2014 one of the detainees was transferred to kuwait. what we know about him publicly that i can speak about is that he was arrested in 2002 for being a member of al-qaeda accused of participating in several militant trainings and being an afail yat of -- the most infamous jihady recruit in the uk. were there any conditions put on this individual's release. was he transferred to kuwait from another prison? or was he like a -- >> senator there are security assurances provided with every transfer. can't get into the specifics. we could do it in closed session. >> i think the american people have a right to know. >> why is this information classified?

secretary? why should the american people know the conditions under people are released? >> within our own criminal justice system if we release someone from one facility to another and we were releasing someone who was accused out in the public why can't we know if they're being held again or are out where they can pose a risk to others. my time will go through on all this, but if i went through again in november four transfers to georgia and just some of the background publicly of these individuals that have been transferred, one was assessed as a likely posed threat to the united states. one was assessed to be involved in ied attacks against the u.s. and coalition forces. one believed to have been affiliated with al-qaeda at a high level and in fact, one is described by the dia previously as among the top 52 enemy combatants at jtf gitmo who pose the most significant threats of

terrorism if released. i could go on and on about each of the backgrounds of each of the individuals you've just released since november and in each of them i would like to know were they transferred to other jails where they can't get back out or were they just transferred to their families so that they can enengage in terrorism? i think that we deserve to know from the administration when they release someone are they just releasing them back where it makes it very easy for them to reengage in terrorism activity? or are they putting them in another prison because the public reports about each of these individuals have been that they've been released not to other prisons but to their families. >> senator, on your question and the chairman's, many of the agreements we have with foreign governments are classified. that's the short answer, sir on why we can't get in the details. >> well -- >> they are somewhere in between

open release and a prison. the kind of assurances that we generally get are travel restrictions, some kind of monitoring, information sharing from the government on what they are seeing and monitoring the detainees themselves. if terms of the five transferred to qatar, what i can say is none have returneded to the battlefield. they are still in qatar. they're under a travel restriction. what i said about i think it may have been before you came in senator, after one year, we have said -- what happens after one year, we'd like to talk to you in a classified setting. >> i know my time is up, but i do not understand why the american people can't be told a basic question when you're transferring someone who's been previously designated as one of the top enemy combatants posing

risk to the united states of america, members of al-qaeda, when they're being transferred, how do you assure the american people if they're not being incarcerated again, that they won't reengage. i think that's basic information that the american people need to know. >> well, senator, since we are going to mark up legislation on this issue next week, declassification of that information, i think could be a part of that legislation. the american people need to know the conditions under which a vowed enemies of the united states of america are, the conditions and restraints that may or may not be placed on them. senator kane. >> thank you, mr. chairman and i agree. the american people knowing more is a helpful thing. this is a balancing act question. i take serious lyly the resit viz m danger and i'm going to get to

that many a minute. but i think to say that the concern about the propaganda value of guantanamo is just a political argument that the president has cooked up, ignores a lot of facts and an awful lot of opinions by very talented national security individuals. the cia open source center study in january, released in january, says there have been at least 30 occasions since 2010 in which al-qaeda and affiliates have referred to gitmo as justification for recruitment and violent jihad. dni clapper sent us a note to the intelligence committee 2013 arguing closing gitmo would quote deny al-qaeda leaders to the -- further their global narrative and cited the al-qaeda magazines in inspire promoting the boston bombing and highlighting the ongoing detention of prisoners of gitmo as a reason to engage in jihad. 42 former generals signed a letter on january 29 to this committee stating the abuses

that occurred at guantanamo have made the facility a symbol to the world of the united states that is unstrained by constitutional values. it strikes me that the propaganda value is not something that the president cooked up out of thin air. it's something our security professionals are telling us. and they're telling us loud and clear, so we have to balance a risk. let me ask you this. federal courts have convicted 556 people on terrorism related charges. from september 1 to december 13. 44 of those cases were tried in my state. has anyone convicted of a terrorism charge in a federal court in the united states ever escaped? sir, i'm not the expert on that, but i do believe nobody ever escapes from super max prisons. >> if wer concerned about resit viz m, i would like to know for the record whether anyone

convicted of the 556 terrorism convictions since 9/11 that have been done in the federal court system of the united states has anyone ever escaped? i'll submit that one for the record. let me ask another question. >> i'm told by somebody with more knowledge, the answer is no. >> i want it in record. i want it answered in writing and i want all committee members to have it. with respect to the taliban five, we were briefed in a classified setting about some information. i then saw it in public. stated be i the secretary of defense in newspapers he was quoted. and i want to ask this question for the record. was there any evidence that any member of the taliban five had ever been engaged in vie leapt activity against the united states or any u.s. personnel when they were in prison at one time. secretary hagel has said there is no -- do you know? >> no while they were at

guantanamo no, sir. >> when they were in prison was there any evidence that any of the taliban five had been engaged in any activity or planning to target u.s. or u.s. personnel? >> sir, i'm told that information on this classified and we'd have to talk to you about it in that setting or provide you an answer. >> i'm upset about this for the same reason the chairman said we need information. i was told this in a setting that was classified, then i saw secretary hagel talking about it b piblly, so i'm assuming it's no longer classified, but i want to submit that question. >> let me check that for you, sir. >> finally, with an important point for us we're all concerned about the -- efforts in dialogue with the white house to determine whether that should be revised. in some way and i just wanted to

underline, the continued league ability to detain at guantanamo does hinge upon the continuing viability of that aumf and so, if it were to sunset or be repealed, a legal status of the guantanamo detainees would be at least questionable. am i correct about this? >> that's correct. >> in terms of our own work, it's pretty important as we look at that. we need to take into account the effect of remaining detainees. the last thing i want to on the numbers, i mentioned that 556 people have been tried on terrorism or terrorism related charges in the federal courts of this country since september of '01 and not a single individual convicted has escaped. am i correct that the military commissions have only conducted eight trials since '01? >> that sounds right but we can

confirm that for you. it's been very few. >> those who would argue this is something that cannot be dealt with through the article 3 courts of the united states since 1787 are clearly in my view not looking at this data. thank you, mr. chairman. >> thank you for being here today. this is a very, very tough issue and i would like to commend senator cotton for his passion on this subject. there are a number of members of this community that have served this nation. as you do and senator cotton has been a warrior. on the ground in iraq. i have been a lodge is tigs on the ground in iraq and all of us face uncertainty when we serve our country.

senator cotton most certainly deserves kudos for serving his nation in a very difficult time and difficult situation when we are looking at terrorists. so, his perspective is slightly different than my own, but i think we feel the same way. that whether it's someone who is kicking in doors and looking for terrorists and facing the threat of the enemy at close range or whether it's somebody that's driving trucks up and down the roads delivering supplies and worrying about ieds that are planted by these terrorists. drivers drivers, just driving by doing what they can do to support our warriors, taken out by terrorists. whether it's innocent civilians here in the united states. al baghdadi, before he was released in iraq, had stated, i'll see you guys in new york. and i don't know, i don't have a doubt that either al baghdadi or one of his extreme terrorists

will find their way back to new york or somewhere in this great country. they have an amazing network that reaches all around the globe. and what i do not want to see and all of us should be able to agree on this, that we do not want to see detainees from gitmo being released and returning to the fight. my sentiments are exactly like senator cottons. i could care less. they really should not be out there where they can threaten american lives or our nato allies, their lives, so, i would like to hear from you, generally, the types of activity activities that our detainees, just so everybody understands, the types of activities, our gitmo detainees were involved in before they were taken to guantanamo. please explain to me so i know many people will watch this testimony. today. they will hear the testimony.

i would like to know what types of activities they were engaged in before they were detained. anybody, please. >> senator. of the detainees remaining at guantanamo, they have been involved in a range of terrorist activities. the worst are the names like khalid shaikh mohammed, who planned several attacks including the 9/11 attacks. that's the trial he is facing at the military commission. the one of the protagonists in the bombing of the u.s.s. cole is is also under trial in the military commission. the terrorist, the people who are at began tanguantanamo have engaged in a range of activities from being active on the battlefield to providing support functions to terrorist leadership. it runs the gamut. nick may have more detail. >> i think brian has it just right. it runs the gamut from known senior leader terrorist figures

exercising leadership figures in terrorist organizations. some of the names he mentioned, but also including the full range of individuals who have played a role in al-qaeda plotting or in providing support activities or support to the taliban taliban. >> so, these are individuals who have murdered thousands of americans, been involved with the planning of murdering thousands of americans, service members, whether they're here on united states soil as with the 9/11 attacks the u.s.s. cole, where they killed many of our service members whether it's innocent civilians in syria and iraq. they did not need guantanamo bay to be imboldened to do those activities, so i push back on the president and this administration in that they will kill regardless of whether they are at guantanamo or not. that they are driven they are terrorists. do you agree with that?

>> senator i agree that terrorists are driven. what i would say about guantanamo in general and the view of the administration is there is certainly a risk to release and we try to mitigate the risk and i think we've had some success in doing that but we believe there's a risk in keeping guantanamo open. the military leadership of the country has said that, you have the letter from three dozen former military leaders who think it is a propaganda tool, that inspires recruitment of additional terrorists. i agree with senator cotton. there's plenty of terrorists out there who don't need guantanamo to attack the united states or u.s. interests, but we believe it serves as a tool that leads to greater recruitment of terrorist organizations. >> well, that is the administration's point of view. i would beg to differ. i think they are going to do what they are going to do. regardless of guantanamo bay.

and their imprisonment there. my time is expired. thank you, gentlemen, very much. thank you, mr. chairman. >> senator reed. >> three quick questions. first, falling off this discussion of guantanamo as a accelerator of terrorist activity or deterrents, mr. rasmussen, you mentioned in your testimony, guantanamo is consciously used by a host of terrorist organizations, to prop began da. is that a fact? >> purely just judging by an ek doe tall evidence and looking at the material the terrorist organizations put out. we see something in english language, we assess they are trying to reach potential terrorists or extremists here in the united states or western european countries and we see

the issue of guantanamo featured in that propaganda. senator king asked a good question. we need to draw the line more tightly between an ek doe tall evidence and what we can say with more precision about recruitment efforts. but i would say this. the terrorist landscape we face right now is increasingly characterized by actors who are not necessarily affiliated or tied to terrorist hierchy or leadership. they operate on their own in many cases. in many cases they radicalize and mobilize themselves for violence on their own, so that particular type of prop, messaging activity that goes on from terrorist organizations, uses many, many factors and guantanamo is one of them. certainly not the only one. other aspects of u.s. foreign policy feature that as well. but i just would have to, it's indisputable that this material does not future terrorist propaganda. we do owe the committee a better

understanding of the direct connection. >> thank you and quickly, miss secretary. there's a discussion of the classification of the arrangement of the countries. is it fair to say that it's the other coup tri that might insist much more on the classification of our own purposes as a cooperation than the united states? is that a fair judgment? >> that's a fair statement yes, sir. >> thank you. >> and finally mr. secretary, the issue, about the status of enemy combatants at the succession of hostilities. that would affect guantanamo and any other place than an individual is being held, if hostilities come to an end legally, than our ability to hold combatants is -- so, we

would have the address this question regardless of whether guantanamo was open and closed. is that fair? >> that's correct. >> senator rounds. >> thank you, mr. chairman. >> senator reed hits exactly on the question i was going to ask. my question would be and if you've answered it already, you'll di fer. what happens at the end of hostilities? what is the plan for taking care of the issues revolving that may still be there? combatants combatants. held as enemy blinlgelligerents and may have to be released. what is the plan to take care of the issue. >> what we're working on now i went through in my opening statement, but you were still at the prayer breakfast. to transfer those approved, about 50 or so, those will take

some time. and we have a periodic review board process that is re-examine re-examining several who were first looked at and determined to be held under law or detention authority. there is some number that we are unlikely to be able to release. at the end of the day as we run through this process. we've got to look at all options. one would be the possibility of bringing remaining detainees back to the united states. we can't do that now because of the stat chur bands, so we would have to come to the congress to talk to you about that, repeal that and we were at the end of hostilities and the question of our authority, our ability to hold them was in question, we would, part of that conversation would be what is the authority we need from the congress to continue to hold those people.

>> can you give us some kind of a time frame as to when you would be making those requests? sfwl i cannot give you a time frame right now, no. >> thank you. >> that's all i have mr. chairman. >> i thank the witnesses for being here today. for the record, in 2009, legal council of the white house came to my office and met with me and senator graham and said they wanted to close guantanamo. i said, fine, i do, too. give us a plan. in the intervening years there has never been a plan forthcoming from the white house and there isn't today. yemen is descending into chaos. we don't know what to do with the present population. how many are capability. what do we want to do with the remaining 70. how many of the remaining detainees with assessed. we hire medium risk, we couldn't

be told that today. where would we send the detainees governed by state sponsors of terrorism or currently beset by instability or insurgency of groups like al qaeda or isil. too dangerous to release, but incapable of prosecution. we have no plan for that. the administration we hope will seek additional authorities to detain elsewhere such as the united states. and we don't know how to ensure there will not be a court marshall release of a dangerous terrorist that is in long-term detention in the united states which is the reason we need legislation. so, here we are six years into the obama administration and we still haven't complied with requirements of the ndaa. nor do we have a concrete plan as to how to address the issues

that i just described. that's why six years later, we are having this hearing. and i again, urge the administration who just responded to senator rounds, you don't know when you're going to come forth with a proposal. we need a proposal and in its absence over six years, congress has acted. and we will continue to act. unless we can work in close coordination with the administration to come up with a plan and one of those plans that is for us to make sure that these individuals who are judged too dangerous to return, are not allowed to. and accommodation is made for the continued incarceration of those individuals. i thank the witnesses for being here today. and senator ayotte i'd like to make a final comment.

>> mr. chairman, with permission, can i have a follow up questions? i don't know if anyone else is, but i'm willing to direct that. i know you have to go. >> senator manchin? >> thank you. as we look at the taliban five, i think the point made clearly, they were top commanders in the taliban. i read you the quote about what one of the commanders on the ground said in helmand province. like pouring 10000 jihadists back into the fight, so you can't say they weren't directly involved because they themselves only issued the commands to kill americans and didn't kill the americans themselves, the leaders are often more important than the foot soldiers asked to

carry this out so i don't understand the argument made with all respect from my college in west virginia. these were top taliban leaders who themselves made many orders that were involved in killing us and our allies in afghanistan. i would like to ask admiral myers, we had general mat is before the committee the other day, i'm sure you know the general. and one thing he said when he talked about our detention policy and he said that he did not understand he was perplexed by our lack of detention policy. and in fact, when i asked him about it he said that ma'am first and foremost, i believe this, we go into a fight we've not seen certain of ourselves not to hold prisoners.

the people we've taken in the fight, do we take on the troops on p.o.w. camps in texas, let them go back and get another shot in normandy? if an enemy wants to fight or be a truck driver, we didn't say to his radio operators could he be released because he didn't have a significant role. if you sign up with the enemy, they should know we're coming after you. if the president and commander in chief sends us out you'll be prisoner until the war is over. this is pretty much war fighting or -- not war fighting 3010 or advanced war. this is kind of 10 ma'am. my biggest concern, if our troops find they are taking someone prisoner, a second time they will just and they have just scraped one of their buddies off the pavement and zipped him into a bag the potential for maintaining the imperative we expect of our armed forces is going to be

undercut if in fact the integrity does not take these people off the battlefield permanently. in other words, they will take things into their own hands and under the pressures of warfare. admiral, do you share general madison's concerns? we we captured someone on the battlefield, then our men and women in uniform encounter them again after having seen their brothers and sisters in arms killed by this enemy don't you think that's real concern and our men and women in uniform should never been forced to confront someone we had previously captured? >> i do not believe the moral of the men and women on the combat

forces field have my impact whether it's the same person the first, second time. i do not believe it is impacting the moral as far as those engaging in combat operations. >> okay but if we captured someone in battle do you think our men and women in uniform should ever have to confront them again? yes or no. we had them. we had them captured incarcerated. we released them. do you believe they should ever have to confront them again? >> i do not believe anyone should have to confront them, however, as you have seen through history, that's not always the case and people have re-entered the battlefield through the history of time. >> they're going to when they're being transferred to third party countries where they're not even being incarcerated again and where there are few conditions on their confinement if any. i think this is something that

is atrocious that in of our allies or anyone working with us should ever be force edd the problems we face here, the other question i would like to ask if we get al -- or baghdadi the head of isis, where, what will we do with them where will we put them? i understand what my colleague from virginia said about article 3 courts. will they be told they have a right to remain silent, miran diazed? >> senator ayotte, our policy if we detain new people on the battlefield is to examine them and follow a case by case basis depending on all the

circumstances. we would certainly interrogate them. if we had an article 3 case that we could build against them, we would pursue that. >> so, i guess where, where, where would you put al baghdadi? do you know the answer? do you know? >> in the first instance, we would interrogate them -- >> where? >> in sight, in c2, where we pick them up. >> after that. >> or we could do it in another place, we've done it with mr. warsami on a u.s. ship. sfl so ship and you can only keep someone on a ship for so long because it's temporary. when we get the leaders of these terrorist groups, this is the problem i've been asking since i got in this is that the and i've been asking top levels of this administration for years if we catch the head of al-qaeda tomorrow, what do we do with them and you know what i've heard? we're working on our detention

policy, we'll get back to you. it's been years and what worries me as we sit here to the chairman's point, so many questions remain unanswered including having baghdadi or sa wary on the ship is not long enough to interrogate them to find out what they know about al-qaeda isis to protect americans and there seems to be no plan for that. >> senator, if we were to get one of these people you mentioned and we could build an article p 3-case, we would ultimately bring them to the united states in new york or virginia where these kinds of cases are normally prosecuteded. if not we would look at whether we could prosecute them through the military commissions process. we would certainly interrogate them for a time. >> except you know of course once they go into an article 3 court, they're entitled to

they're entitled to rights to a speedy trial, so we aren't going to get a chance. >> we would do the interrogation and if there was an option for federal court prosecution, we would bring in a separate fbi team that had not been privy to the prior military or ic investigation to then build the case, so it would be a separate interrogation. >> we had them on ships because this administration is so adverse to putting anyone in guantanamo, they'd rather hold someone who's a terrorist on a temporary basis on a ship rather than make sure that we can have the opportunity for a lengthy

interrogation as you know sometimes, it takes a long time to gather all the information that someone like the head of al-qaeda orris is would know. >> please answer. >> yes. senator, i don't think there have been any pressure on the intelligence professionals who do these interrogations to speed it up and i believe although i would double check this for the record even after we went into the frafl court system, mr. warsami gave us plenty of information. federal prosecutors have a hot of tools in enkoushlging cooperation, so, we are not without tools to get the proper information. >> the senator's time really has expired. senator sessions and if you'll close it down. >> thank you. >> well, thank you for those questions. it goes to what i believe we

need to think about here. mr. rasmussen was it al libi that was captured by a commando team in libya and taken to a ship? >> that's correct. >> and wasn't that a high risk thing for american solgss and they were sent in to capture him alive so that he could be interrogated because i believe the "new york times" referred to him as the mother load of intelligence possibilities since he was involved all the way back to the coheart towers activities of al qaeda. >> i defer to my pentagon colleagues. we assessed from intelligence per speck sieve is that a figure like al libi would have tremendous knowledge. >> thank you. i think that's why we put our people at risk to capture him.

mr. mckeyon. isn't it true and i'll just try to be brief and we'll wrap up. isn't it true that a person connected with al-qaeda a person connected with isil and other terrorists i'll just say those, too. if captured they qualify as prisoners of war? >> if they meet the standard for law or detention aurnd the muf and laws of war, yes, sir. >> and certainly mr. al libi would have qualified. as that would issue authorization against al-qaeda. >> sir, i would say on the case of mr. al libi, there is a preference to capture for the intelligence gain, but the judgment is made primarily by our military colleagues, whether that is feasible. >> just trying to wrap up. >> i understand, sir, i just want to give you the whole picture. >> we all know that. so, the question, so, under the

laws of war, a person who's unlawful, who is a prisoner of war, can be detained until the conflict is over on the general principles of war. >> technically sir, there are unlawful enemy combatants are not considered pows. >> they could be both, could they not? and see i don't know why there would be any difficulty in having them qualify in both. >> sir this is where i'm getting out of my lane with the legal question. i ask somebody from our general counsel's office. generally, we don't consider them p.o.w.s. >> you also don't consider them as a difference between civilian prosecution and military detention and military commission trials either. in which case, has -- dead

wrong. if they're taken for military trial, and testimony if they can be prosecuted in an article 3 civilian court, they will be. is that the policy we're now operating under? >> what is the same is that all options are are on the table and we would look at prosecution in both article 3 court or military commissions, but if we can do it in the article 3 process, i wouldn't say there's a preference, but we have a good ability to do that. >> you almost repeated what you said before, which is if we can prosecute them in 3 curtourt today we will. >> under considerable success and a lot faster pace than military commissions. >> if i'm prosecuting federal

court. >> senator ayotte is correct. brought in federal civilian court. they are immediately pointed a lawyer. if they or allies or conspirators have money they can hire their own lawyer, isn't that correct? >> that's correct. >> and before they can be asked any questions, they are give p rights and told not the answer questions. >> once they are in that system, but we've done the interrogations with our ic and military professionals before we put them into that system. they are not mirandaized. >> and if they have a lawyer, the lawyer is going to tell them not to cooperate unless he tells them hymn to for some reason. isn't that correct? that's what good lawyers do. don't talk to the police until you and i talk and i approve of

it. that's what goes on in the real world. then, the person charged in civilian court has a right to demand a speedy trial. he has a right to demand discovery of the government's case. he has a right to documents that could be relevant to his case. and he can ask for information that frequently in my experience, implicated the issues of national security and intelligence and how it's gathered and that kind of thing. i'm sure mr. al libi is going to demand information about how he was captured and how you had information about him. >> he's deceased, sir. >> he was taken from the ship after how many days? >> i don't know how long he was on the ship? >> mr. rasmussen? >> it was a small number of days, but driven by his rapidly

deteriorating health status and -- >> he could have been taken to any doctor. any doctor could have been flown to guantanamo to treat him, but instead when he was taken to a doctor in maryland as i recall he didn't have to be put in civilian court. he could still be in military custody. so, if the person is taken to military custody and treated as an unlawful combatant or as a prisoner of war, they could be detained and interviewed over a period of months. and isn't it true that a person held in that condition is not entitled to a lawyer. >> i understand that.

if you move to a trial and actually put them in a status of being prosecuting for unlawful acts against laws of war, then they do have to have an attorney, but you can hold them for months, could you not? and gradually build up a relationship with them and attempt to obtain more information over time. >> that's correct but that's not precluded in the criminal system and as you know as a prosecutor, sir, the federal prosecutors have a lot of powers to encourage cooperation. >> they don't have any more powers than the military pross have. that's just a myth you guys have been talking about. all the powers you have is a plea bargaining. they can be plea bargaining military commissions, too, and if you don't know that, i'll tell you that. so, to me, i'll just wrap up. the vote is ongoing. there is absolutely no way that you can contend over a number of

cases as a matter of policy it's better for the national security of the united states that people be proptly taken to civilian court to be tried in civilian court ratter than be held in military commissions and tried at our will and as i understand it if even after being detained in military detention, over a period of a year or more, they could still be sent to civilian court for trial. but i don't think we want to try them in military court. >> no sir i think we look at all options. >> have you in the last number of years, how many have been sent for trial in military commission? >> well, we have military commissions ongoing at guantanamo. and what i would say in terms of -- >> under this president and the recent months years people have been captured have any been sent to trial there? >> we have not added to the

population at guantanamo bay, that's correct. what i would say, sir, in terms of the efficacy of the two systems, because the military commission system is essentially new because of the new stat choir framework, these cases are dragging on. where as in thesy sycivilian court system, we're getting convictions and putting these people in prison fairly quickly. >> well, they can be done that way in military commissions. the problems will be worked out. the judges taking everything in the first impressions. i'm sure they take more time. but had we been moving these cases forward for a long time, those issues would have been decided by now. and they have different issues, so i'll wrap up. my time is up. i just want you to know i

appreciate that you're advocating for the -- they were product of an -- campaign. based on lack of understanding of the lack of reality of guantanamo. a perfectly humane and good place to keep people. we set up proceedtures to try them fairly and over time and in a way that we are in control of the situation. rather than a federal judge whose duty is to respond to moving cases trying to assist the government in obtaining intelligence. senator graham and others and ayotte and prosecutors see it as i do in a more knowledge abl than i, but i really strongly

feel this is a mistake. it's not helpful. to the national security of the united states. thank you all and the meet ging is is adjourned.

wrapping up this committee hearing on guantanamo bay, if you missed some of it in just a few minutes, we're going to show you portions and you can watch it online at cspan.org. during the opening statements brian mckeene talked about the recent execution videos of hostages by the islamic state. reuters reports that he said that it was no coincidence that the hostages were shown wearing orange jump suits, believed to be the symbol of guantanamo bay. he continued to say president obama and his national security team all believe the continued

operation of guantanamo bay is used by violent extremists to incite populations. president obama also talked about the islamic state at the national prayer breakfast in washington. here's a portion of his remarks. >> what i want to touch on today, the degree to which we've seen pros of faith yuszed both as an instrument of great good but also twisted and misused in the name of evil. as we speak around the world, we see faith inspiring people to lift up one another. feed the hungry. and care for the poor. and comfort the afflicted and make peace where there is strife. and we heard good work the sisters has done in philadelphia

and the incredible work that dr. brantly and his colleagues have done. we see faith driving us to do right. driving us to do right. but we also see faith being twisted and distorted, used as a wedge, or worse, sometimes used as a weapon. from a school in pakistan to the streets of paris we have seen violence and terror perpetrated by those who profess to stand up for faith their faith. professed to stand up for islam, but in fact, are betraying it. we see isil, a brutal, vicious death cult that in the name of religion carries out unspeakable acts of barbarism, terrorizing

minorities like the yazidis subjecting women to rape as a weapon of war and claiming a mantle of religious authority for such actions. we see sectarian war in syria, the murder of muslims and christians in nigeria, religious war in the central african republic, a rising tide of anti-semitism and hate crimes in europe. so often perpetrated in the name of religion. >> if you missed any of this morning's national prayer breakfast, you can see it online any time at c-span.org. >> the political landscape has changed with the 114th congress. not only are there 43 new republicans and 15 new democrats in the house and 12 new republicans and 1 new democrat in the senate there's also 108 women in congress, including the

first african-american republican in the house and the first woman veteran in the senate. keep track of the members of congress using congressional chronicle on c-span.org. the congressional chronicle page has lots of useful information, including voting results and statistics of congress. new congress, best access on c-span c-span 2, c-span radio, and c-span.org. >> this sunday on q&a, david brooks columnist for "the new york times" on writing an article for "the times," and the awards he gives out at the end of the year. >> they're given for the best magazine essays of the year and they can be in journals or they can be in "the new yorker," "the atlantic." the idea is they always come out around christmas week between christmas and new year's. the idea is that's a good week to step back and not read

tweets, not read newspaper articles, but to step back and have the time to read something deeper and something longer. and it's to celebrate those longer pieces. i do believe magazines change history. "the new republic," which until its recent destruction was the most influential american political magazine in the 20th century. it created progressivism. it created a voice for modern liberalism liberalism. >> sunday night at 8:00 eastern and pacific on c-span's q&a. >> and coming up in just about 40 minutes or so from right now we'll have today's white house briefing live with press secretary josh earnest here on c-span 3. senators wrapped up their hearing a few minutes ago so they could move over to the senate floor. a procedural vote a cloture vote being held right now that would advance a house spending bill for the homeland security

department. that includes provisions that executive order on immigration. looks like 51 yes 42 no right now. we have that live on c-span 2. if you missed some of the hearing that we just showed you, we're going to bring you some highlights from it right now, at least about 50, 55 minutes worth. a hearing on the future of guantanamo bay prison and u.s. detention policy. a state department official yesterday said the u.s. will not return the u.s. naval base there to cuba as part of negotiations to normalize relations. we'll show you as much as we can until josh earnest comes out. >> thank you very much, senator reid. thank you for the opportunity to testify today on the detention center at guantanamo bay. our policies on transferring detainees and related issues. on january 22nd 2009, president

obama signed executive order 13492, which ordered the closure of the detention center at guantanamo bay cuba. pursuant to that order a special task force was established to broadly review information in the possession of the u.s. government about the detainees and determine the possible of their release. through that rigorous interagency effort, a certain number of detainees were approved for transfer a certain number were referred for prosecution or further review and a certain number were designated for continued detention. since then pursuant to executive order 13567 signed in march of 2011 and consistent with section 1023 of the nda for fiscal 2012 a periodic review board has begun to review the status of those detainees not currently eligible for transfer, except for those detainees against whom charges are pending or a judgment of conviction has been entered. when the president came into office six years ago, there were

242 detainees at guantanamo bay. today, because of the works of task force and subsequent effort, 122 detainees remain. of these, 54 are eligible for transfer. ten are being prosecuted or having sentenced. and 58 are being reviewed by the periodic review process. in his nearly two years as secretary, secretary hagel has approved the transfer of 44 detainees, 11 of whom were transferred in 2013 28 of whom were transferred last year, and five of whom who have been transferred this year. the great majority of these transfers authorized by the secretary occurred under the authorities of section 1035 of the ndaa for fiscal '14. we urge you to maintain these authorities. mr. chairman, members of the committee, i want to make a fundamental point regarding the detention facility at guantanamo. the president has determined that closing it is a national security imperative. the president and his national

security team believe that the continued operation of the facility weakens our national security by draining resources, damaging our relationships with key allies, and is used by violent extremists to incite local populations. it is no coincidence that it the recent isis video showing the barbaric burning of a jordanian pilot and the savage execution of a japanese hosage each showed the victims clothed in an orange jump suit believed by many to be the symbol of the guantanamo detention facility. 40 retired military leaders, all retired general or flag officers, wrote this committee last week and stated it is hard to overstate how damaging continued existence of the detention facility at guantanamo has been and continues to be. it is a critical national security issue. many of us have been told on repeated occasions by our friends in countries around the world that the greatest single action the united states can take to fight terrorism is to close guantanamo. this letter is signed by general charles koulak, retired

commandant of the marine corpse michael lenhart the first commanding general of the task force at guantanamo, the former head of se 234rks-com, and other retired leaders. many other military leaders acknowledge the need to close the facility including the current and former chairman of the joint chiefs. whenever we have taken expedient measures, they have turned around and bitten us on the backside. senior leaders have made clear that guantanamo poses risks to our national security and should be closed. former secretary gates and panetta and the current secretary all support closure of guantanamo. finally, president george w. bush concluded that the guantanamo detention facility was, quote a propaganda tool for our enemies and a

distraction for our allies end quote. i'll now briefly address some of the issues that were raised by the committee's letter of invitation. 27 detainees have been transferred since november 2014. these detainees have been transferred to nine different countries. key features of the process that leads to a decision to transfer include a comprehensive interagency review and rigorous examination of information regarding the detainee. the security situation in the potential host country and the willingness and capability of the potential country to implement and maintain appropriate compliance with security measures. those initial reviews were conducted by career professionals from across the government. next, any transfer decision requires an assessment by the special envoys of the security situation in the receiving country and the willingness and capability of that country to comply with security assurances. we also have the ic look at that issue. finally, each decision to transfer had been subject to unanimous agreement of six principles.

secretary of state, secretary of homeland security, director of national intelligence, the attorney general, chairman of the joint chief and finally the secretary of defense. under section 1035 of the ndaa, the secretary may approve the transfer if he determines that it is in the national security interests of the united states and that actions have been or are planned to be taken that will substantially mitigate the risk of the detainee engaging in terrorist or other hostile activity that threatens the united states or u.s. persons or interests. a primary concern that we have regarding a potential transfer is whether the detainee will return to the fight or otherwise reengage in acts of terrorism or acts that threaten u.s. persons. we take the possibility of reengagement very seriously. the most recent public data on reengagement of former detainees was released last september, and the data are current as of july 15 2014. there is a significant lag in the public reporting, and i know you may have seen a more recent

classified report on this matter. the office of the director of national intelligence categorizes the figures in three ways. the totals for before 22nd january, 2009, when president obama signed the executive order and the total after 22nd january, 2009, which refers to former detainees who departed guantanamo after that date. this is how the data break down. the total number is 17.3% confirmed of reengaging, 12.4% suspected of reengagement for a total of 29.7% confirmed or suspected. before january 2009, that is those transferred in the last administration, the numbers show 19% confirmed and 14.3% suspected reengagement, for a total of 33%. the data after january 2009 shows that 6.8% confirmed of

reengaging. 6 out of 88 transfers, 1.1% suspected for a total of 7.9. in other words, the rate of reengagement has been much lower for those transferred since 2009, which attests to the rigor of this new process. of the detainees transferred during this administration over 90% are neither confirmed nor suspected of having reengaged. this speaks to the careful scrutiny given to each transfer in this review process and then negotiation of agreements regarding security measures receiving government intents to take pursuant to its own domestic laws and independent determinations that will mitigate the threat. one additional point about the data. of that 107 confirmed of reengaging, the vast majority of them transferred before 2009. 48 are either dead or in custody. reengagement is not a free pass. we take any reports of suspected or confirmed reengagement very seriously and work in close coordination with our partners to mitigate reengagement or take

follow-on action. i cannot discuss the specific security assurances we receive from foreign governments with any specificity in an open session. i can tell you that among the types of measures we seek are the ability to restrict travel, monitor, provide information, and reintegration or rehabilitation programs. before transfer, we have detailed specific conversations with receiving country about the potential threat the detainee may pose after transfer and the agreement about measures the receiving country will take in order to mitigate the risk. we also review the capability of that country and its security establishment and its track record and adhering to prior agreements. let me talk about the periodic review board process briefly. the prb process is an interagency process established to review whether continued detention of detainees at guantanamo -- we will provide your staff more information

about the process and the conduct of detainee risk assessments. to date, the results of ten full hearings for nine detainees have been made public. six detainees have been made eligible for transfer with appropriate security assurances pursuant to this process. two of the detainees made eligible by the process have been transferred, one to kuwait and one to saudi arabia. the other three remain subject to law of detention. others are being made to expedite this process and prioritize hearings. you've asked us to address the legislation recently introduced by senator ayotte and other members, which i understand may be marked up by the committee next week. in our view, this legislation effectively ban most transfers from guantanamo for two years. it reverts to the previous certification regime under the ndaa for fiscals '13 and '14 -- excuse me fiscal '12 and '13, which resulted in only court-ordered transfers, transfers pursuant to plea

agreements, and use of national security waivers. in addition, it adds propro sal to limit transfers based on jtf gitmo threat assessments that may be outdated or not include all available information. we believe any decision on transfers should be based on current information and individual assessments of detainees. because this legislation, if enacted, would block progress toward the goal of closing the guantanamo bay detention ernt center, the administration will oppose it. a ban on transfers to yem season unnecessary because we're not at the present time seeking to transfer any of them to yemen. especially in light of the recent further deterioration in the security situation there. since the president's moratorium

on detainee transfers to yemen was lifted nearly two years ago in favor of a case-by-case analysis, not a single detainee has been transferred to yemen. the 12 yemenis who have been transferred recently have been transferred to five other countries. we're currently seeking to find other third countries to take additional yemenis. briefly our plan to close guantanamo has three main elements. first, we continue the process of responsibly transferring 54 detainees eligible for transfer. second, we will continue the prosecution of the detainees in the military commission's process and if possible in federal court. third we will continue and expedite the prb process. when we have concluded, it is likely several detainees cannot be prosecutor -- prosecuted because they are too dangerous and will remain in our custody. ultimately closing the detention certainty at guantanamo bay will warrant us to consider other

options including secure facility in the united states. the department of justice has concluded in the event the detainees are located to the united states, existing statutory safeguards and executive and congressional authorities provide robust protection of national security. we understand such transfers are currently barred by statute. as a result, the government is prohibited from prosecuting any detainees in the united states even if it represents the best or only option tore bringing the detainee to justice. the president opposes these restrictions for the detainee population. you asked us to address what happens if someone is captured on the battlefield. the disposition of an individual captured in the future will be handled on a case by case basis and by a process principle and credible and sustainable. when a nation is engaged in hostilities as we are, detaining the enemy to keep them off the

battlefield is permissible and humanitarian alternative to lethal action. in some cases those detained will be transferred to third countries and others transferred to the united states for federal prosecution after appropriate interrogation in the case of ahmed. the president has made clear we will not add to the population of guantanamo bay. in closing i will note president bush worked towards closing guantanamo and many officials in his administration worked hard to achieve that objective. we are closer to this goal many people may think. of the 800 detainees held since it opened in 2002, the vast majority have been transferred including more than 500 detainees transferred by the previous administration. the president and national security experts of this administration believe it should

be closed as do the senior military leaders and civilian leadership of the department of defense. we believe the issue is not whether to close guantanamo, the issue is how to do it. thank you very much for listening. i look forward to your questions. >> thank you very much, mr. secretary. let me do something i neglected to do prior to your testimony. introduce the witnesses. i'm a little rusty at this. secretary mckeon has presented testimony principal underdeputy department of defense and mr. rasmussen is director of the national intelligence center office of national intelligence and admiral frost myers is head of nuclear defense and joint staff. do you have a statement? >> i believe -- >> please. >> mr. ranking member, thank you for the opportunity to appear

today. specifically the analysis the intelligence community provides. the community provides a range of tailored assessments. >> could you adjust your mike? ? sorry. >> the intelligence community produces a range of assessments helping policymakers make decisions about the potential transfer of detainees from the guantanamo detention facility. these assessments include profiles of relevant factors whether individual detainees pose threats to the united states or our allies. to echo brian's remarks, we take the risk of reengagement very seriously. the community is continuously evaluating global threat environment and makes those makes decisions including congress of threats to the united states. as you know, we continue to face threats from a wide range of actor, al qaeda and its affiliates as well as isil and those inspired by violent extremist messaging. the full force and brutality of

these groups isil and isis i felt majorly in iraq and north africa. today's threat in western countries is largely characterized by smaller scale attacks and worthy noting the attacks recently are by individual terrorists. and guantanamo detainees focuses most intently on potential for these detainees to threaten the u.s. and its interests overseas after they leave guantanamo. these assessments add to provide a comprehensive understanding of the ee's background and mindset and any groups that pose a terrorist threat to our interests. those assessments take into account the evolving threat to the united states as well as security developments overseas including the detainees' home country and conflict zones and potential transfer destinations.

intelligence community products do not state whether a detainee poses a high or low risk of re-engagement. we assess the likelihood for a detainee to reengage is shaped by a synthesis of environmental factors. we also provide assessments about pro-tensional destination countries, their capabilities and willingness to mitigate a potential detainees' threat. brian mentioned re-engagement. i want to talk about monitoring an individual for possible re-engagement. once a detainee is transferred from guantanamo. the icc monitor fors engagement and work closely with liaison partners for a full understanding of a former detainee's activities. through a formal detainee's process that draws on assessment of eight different intelligence agencies we determine whether to mark a former detainee as

re-engaged. we confirm a detainee as re-engaged in terrorism when a preponderance of evidence shows them involved in terrorist or negligent activities. we determine a former detainee is suspected of re-engaging in terrorism when suspected of plausible and unverified and single source reporting indicates an individual is directly involved in such activities. it's important to note engagement in u.s. statements or engagement in propaganda activities does not by itself qualify as terrorist or negligent activity. also the case that some former detainees have been added to this list of suspected re-engagement candidates and later removed after information came to light suggesting the individual had not after all re-engaged. to quickly run through the numbers brian cited again.

107 or 17.3% of the 620 detainees transferred from guantanamo had been confirmed of re-engagement in terrorist activities as of september 20, 2014. at the same time, the ic assessed presidential 12% were suspected of re-engagement. of the 88 transfers that have occurred since the inner agency process that the director of national intelligence participates in 2009, 68% of those transferred during that time have been confirmed of re-engagement with another 1% suspected of re-engagement. the next unclassified report the intelligence community will put out on these re-engagement numbers is expected in early march and we will reflect those numbers of the recent activity. i can't point them out but say they will largely be in line of information reported from the allies.

i'll stop then and look forward to your questions. >> thank you. admiral, any general comments? >> chairman reid and members of the committee, thank you for having me here today to discuss this important topic. as the joint staff representative of current operations i appreciate your effort and focus on this matter. may i always expend my personal thanks for your unwavering dedication and support to the members of the armed forces. i look forward to your questions. thank you very much. >> thank you for your statement, admiral. succinct and to the point. there was a letter 42 general officers addressed to senator mccain and myself. i ask it be made part of the

record. hearing no objection, so ordered. with the presumption that the chairman, when he arrives, will be immediately recognized, let me ask a few questions and begin to recognize my colleagues. you've all testified the trimline is going down significantly. and you see this continuing in terms of recidivism, which is a critical issue. is that your conclusion? >> senator reed, that's certainly what we're seeing in the data and too soon to say whether they've re-engaged or not because they're still getting settled but feel good about where we are with those, that's correct. >> let me also ask both you and mr. rasmussen, as you analyze these individual cases of recidivism, are you using it to inform your judgments going forward, ie the circumstances of the individual, the country, which he or presumably he, in some cases, perhaps she, goes

back to anything like that, so this is a continuing learning experience and you feel getting more capable of making judgments about the usefulness of returning the individual? >> the answer to that is yes, sir. we take a very close look at not just the individual who may be transferred but assurances the country agrees to sign up to and capability of its own security services to uphold the agreement. the ic and embassy help us with that kind of assessment. >> there is a check on the assurances given by these various countries so we are confident they have both the capacity and the will and are actually keeping up their end of the bargain. is that accurate? >> we continue to monitor

compliance with agreements through various means, including the u.s. embassy and where appropriate, liaison services and our own capabilities. >> let me go to one of the major points you made. that is specifically mr. rasmussen, that the continued operation of guantanamo gives some of our adversaries a propaganda points we respect to recruitment, tension, magnifying their operations. is that the assessment of the intelligence community? >> yes, senator, from the director of national intelligence's perspective, who's asked to weigh in on these perspective, from the perspective of defense what underpins his decisions in this regard is an analytical judgment

of the benefits of closing guantanamo. in many cases, outweigh the risks occurred by releasing individual detainees. precisely because of that continued featuring of guantanamo in the terrorist narrative he's made that calculation. the fact guantanamo features in terrorist recruitment and propaganda signifies it has significant use terrorist are tries to recruit on. isil has used guantanamo in english language propagation in the english magazine and the magazine in yemen has used guantanamo in their propaganda and also noteworthy al qaeda's senior leader ayman al zawahiri continues to use it to those around the world. >> this is a specific issue we have to face. general kelly of the u.s. south

command is concerned about the medical facilities there. you have an aging population of individuals. last year in the senate version of the authorization bill we put in language that would allow for temporary transfer because of the medical condition of an individual to more appropriate facility, care in the united states. this was not ultimately adopted. is that something that concerns you going forward, just in terms of a population that obviously is going to be -- as this closure is delayed more and more in need of specialized care? >> it does. there are members of the population who have acute health care issues and as they get older those will continue to get worse. i was down to visit a couple

months ago and had a conversation with the jtf commander about this. his concern is it's quite expensive. they have to bring in specialists to treat these individual matters from the states. i think we would prefer, if we could, on a short term basis, as you indicated in your legislation, bring them to the united states for such specialist care as needed. >> thank you very much. senator tillis. >> thank you, senator reed. gentlemen, thank you for being here today. i have a question about the five talabanis who were released. i think we got notified through the press, back in may of last year. my question for any on the panel would be, were the five talabanis who were released subject to the periodic review? >> they were not, sir.

>> they were not. >> and if not, why? >> i was not in the department at that time, sir. i would have to go back and ask that question. as you know, it was part of an exchange for sergeant bergdahl. >> so the assessment of their risk level didn't go through the processes that were established? >> i didn't want to leave you with that impression. the periodic review board process makes a determination whether the detention of the person is still permissible. the statute you have given us requires the secretary to make the determination prior to any transfer of the national security interests and the substantial mitigation of the risks. that, sir, that was undertaken. >> i don't believe you were there at the time, but why do you think the department decided

not to notify congress, as per the statutes? >> sir, i believe the secretary- -- >> perhaps, what's the legal basis for that as well? >> sir, i used to be -- i'm still a lawyer technically and counselor on the senate foreign relations committee for several years but they stopped paying me to give legal judgments and it would be malpractice for me to try to opine on it. my understanding the department of justice and mr. preston, the general counsel of the department interpreted the president's powers because of the security risk and safety of sergeant bergdahl necessitated proceeding without the 30 day notice. i'm happy to get you the more refined legal answer because i'm not the person to do that for the department. >> thank you. another release of four afghanistan nationals, i believe, back in december, why did the administration not

require continued detention of these four detainees? >> sir, these individuals had, i believe, approved for transfer in 2009 by -- >> did they go through the -- >> no, they -- they were already cleared -- approved for transfer by the 2009 task force, sir. >> another question i had is with respect to the process. i noted that the detainee is entitled to having counsel, which presumably means the information that the periodic review board uses to determine or to make a determination is available to that counsel. is that same information available to the public or congress on the periodic review cases that have gone through? >> sir, with the periodic review board, the detainee has a right to a personal representative, who's a military officer. he can employee private counsel. if that person is give an clearance, we can share certain classified information.

we have tried to have some measure of transparency with the prb process in releasing information about the hearings on the department website. we are not able to share everything that's available to the prb because some of the information is classified. >> thank you. thank you, senator reed. >> thank you very much. senator king, please. >> thank you. mr. rasmussen, it seems to me the key question here is weighing the risk of individual recidivism versus what i would call a reputational risk or recruiting risk of the facility itself. could you elaborate on what the director of national intelligence -- that's what -- that's what this is all about, it seems to me, is it more dangerous for national interests

to keep guantanamo open because of its use as a recruiting tool or greater risk of the people being released re-engaging. give me your thinking on that. is that the question? >> sure. happy to answer that, senator king. because the director of national intelligence does have a voice in the process to approve a transfer, he does look at, as i said earlier, all the relevant information related to the detainee's specific background. background while going to guantanamo and background in the course of detention at guantanamo and any information in which he might be transferred. at the same time he has that underlying analytic judgment the director of national intelligence has been very clear about, is there a cost in terms of our national security we're bearing because of the continued operation of guantanamo in the context of recruitment and potential radicalization of

future terrorist adversaries. the weighing process he goes through looks at both factors. that does not mean in all cases he will look at detainees and saying continuing to operate at guantanamo creates too big an obstacle to pose a transfer. there are some detainees he would consider too dangerous to return in a transfer, almost -- unless there were extraordinary arrangements made for their monitoring and disposition overseas. that calculus made is not a single cookie cutter calculus in every case but is overlying assessment. >> if this is one of the key questions, it sounds like it is, i would appreciate if you or some of the witnesses could supply to this committee data supporting evidence of this recruiting factor, just rather than a reference to what al baghdadi said or something -- a real set of materials, written materials, the way it's being used.

it seems to me that's one of the most important questions we have. if we're going to decide to close the facility collectively the united states government will decide to close the facility, based upon that we better know it's real and not just a perceived threat. mr. mckeon, is the administration contemplating a further executive order to close the facility beyond what the current process -- how the current process operates? >> i'm unaware of any contemplation of an additional executive order. as i said in my statement, senator, we're working on the three lines of effort, transfers, the prb process, i'm blanking out on the third one. >> you don't know of contemplation of additional exercise of executive authority to simply close the facility?

>> i'm not, sir. we are operating under the president's executive order from 2009. >> any question that bothers me, okay, if we decide it's in the national interests to close it, there still are some people there very dangerous. can we hold these people in the united states under the law of war, and the second question is how does the law of war analysis work if the war, which was the war in afghanistan, is officially over? does that undermine the legal analysis? in other words, we could bring very bad guys here and put them in maximum security prisons under the assumption they're law of war detainees only to find we get a where it of habeas and don't have enough to keep them in a federal court. you understand where i'm going with the legal question? >> i do, sir. on the second question, the detainees are already subject to habeas or can file habeas

petitions in then d.c. circuit pursuant to supreme court rulings. >> there's no difference between guantanamo and some place in the united states in that legal regard? >> that's correct. as to the question of the legal authority to continue to hold them, we are relying on the 2001 aumf that's the law of war and if we reach a point it is either repealed by the congress or decided it was no longer sustainable based on the situation in afghanistan, then we would have an authority issue to wrestle with, no question about that. >> thank you, gentlemen, thank you for your testimony. thank you. mr. chair, welcome back. >> thank you. other members in attendance at the national prayer daybreak fast will be coming in and that obviously is the reason for me

being late. i want to thank the witnesses and thank you, senator reed for proceeding. i will hold my question until senator sullivan. >> thank you, mr. chair and thank you, gentlemen. mr. rasmussen, congratulations on your recent appointment. i want to follow-up on senator king's questions. there's a lot of discussion here about how guantanamo potentially weakens national security that you made in your testimony. at the same time, i think we would all agree that allowing known terrorists back on the battlefield to engage our troops, our citizens, also weakens our national security. i think that that is one of the big concerns, certainly of

the -- this committee and members of congress. and, i'm certain, also members of the administration. so from a broad perspective, of the remaining gitmo detainees, how many are currently assessed to be high or movement risk? >> senator, i don't have those numbers at my fingertips. if you're referring to the assessments that were done by j.t.f. gitmo back in the last decade, my impression is, knowing the population of that which we already transferred, using those categories, i think we have transferred most of those who are low risk. i don't know then precise data. we have to get that to you, sir. >> but i mean of the current remaining detainees, we don't have handle on who's high or

medium risk right now? >> i don't have that at my fingertips. as we -- both i and nick rasmussen explained, when we bring forward a case for possible transfer we look at the totality of the evidence, what the detainee had done on the battlefield, how they behaved at guantanamo, what their current -- what our assessment is of their intentions. it's not just to look at the assessments done. >> mr. secretary, you're not answering the question, if you don't have the answer then submit it. it's important to this committee to know who's low risk, medium risk and high risk. i would have expected you to come to this hearing with that information. >> yes, mr. chairman. i should add these risk levels in terms of who's in what category is classified and we'd be happy to have that conversation with you in a classified session as well. i don't have those numbers at my fingertips it's safe to say many are in the medium or high risk category.

>> it would be very important for us to know that as we move forward. senator tillis touched on this issue of the notification of congress. i think a lot of people were very disturbed by that, just by reading int the paper. can you again -- if you don't have it here, perhaps with the attorney general's help, provide a detailed -- detailed legal reasoning of why a very simple statutory requirement for notification of congress on the release of the taliban five was not undertaken? because i think one of the things that is troubling is there's a lack of trust here. there's a lack of trust on the numbers. there's not certainty on what the end game is. and when a simple request -- it's not a request, it's the law, one of the things i've been concerned more broadly with the

administration is they view certain statutes as advisory, maybe they need to do them, maybe they don't. this was a clear directive from the congress in the law that this administration violated. and as far as i can tell, there's been no good explanation. i read about them in the press. they seem to change. it would be very important to get a definitive explanation from this administration on why they violated that statute. to me, it seems like a clear violation of that statute. can we get that? >> certainly. you may already have it, sir. i believe the jo did a review on the legal issue in the department and probably the department of justice provided a detailed explanation of our position and i think we provided it to the committee and if we have not, we will submit it. >> one other thing, i understand there was an mou between -- regarding the taliban five, that they have a -- my understanding is a one year restriction with

regard to their activities and movements. after a year, are they free to do whatever they want? return back to afghanistan? that's a concern by this committee and the people. >> you are correct. the agreement between our two governments is classified and we briefed it to your staff and i think some of the members in closed session. i'd want to get into that in a closed session about what happens after one year. >> okay. thank you, mr. chairman. >> senator donnelly. >> thank you, mr. chairman. a recent department of justice report noted there are a number of statutory provisions that should render guantanamo detainees relocated to the u.s. inadmissible under immigration laws. but one of the most difficult scenarios hinted at in the report involves what happens if a judge order the release of a detainee because the laws of war

no longer permit their detention. in that case, if a detainee cannot be repatriated to their home country or third country, the u.s. could face the need to keep that detainee in the u.s. so where does that individual go? >> sir, if we come to that position, which i think we're some ways away from that day, it's a very good question and we have to plan for that possibility. we don't expect that would happen if we brought the detainees here. >> but it can. we don't expect it but we can, so what do we do with that person that has been suggested -- i've heard some say an immigration detention center. you know, i think the people of the country want a better answer

than that when you're talking about the people we're dealing with. >> if we were to bring them to the united states, we would make sure we had some continuing authority to keep them. i don't think we would roll the dice on losing the authority to detain them. >> then additionally, what's your assessment of the risks involved in this situation? that's, i think, as we looking through this whole process, this is one of those conundrums we have to have an answer to. what's your assessment of the risks on that, sir? >> i'm not an immigration lawyer, sir, i'm probably not qualified to give you an answer on that. i do know and believe the department of justice report speaks in some -- homeland security department analyses all these issues in some detail. we are, of course, currently barred from bringing the detainees to the united states. understand. but if they do come here, that's -- i was -- i was on a

trip to guantanamo recently. this is one of the subjects that we talked about and said, you know, i think before you get all the answers on this, you need an answer on this, where if they're in the u.s. and this happens, what do you do with the person at that point? >> i understand. if and when we get to that point, where we propose an option to bring them to the united states, we will have an answer. >> i think we need an answer at that point. thank you. in terms of other than the taliban five piece, how many 30 day congressional notifications meeting the requirements of the nda has been sent to the committee in the past year? >> i don't know the number. in other cases the 30 day notification was provided. >> and then there's some concern that the detainees that are being transferred, it's on an

assessment from more than three years ago by the guantanamo review task force. as we look at this, the periodic review process was created in part to regularly update this. do you know what has caused the slowness of this? do you find that to be true and do you know what caused the slowness of this? >> i want to separate two things here, sir. if somebody's already been cleared by the 2009 task force and we find a place to which we can transfer them and a package is brought to the secretary to make the determination, we have an updated assessment on the individual. we're not relying solely on the 2009 task force work. the prb is looking at people who were not previously cleared, taking another look at whether we should continue to hold them under law of detention or if they can be approved for transfer. we had -- it took some time to stand up the prb process. it's gone a little bit slowly

but we're trying to pick up the pace. >> okay. just to -- as i wrap up here, from that trip that was a little bit ago, the question i asked has stuck with me, what are we going to do with this person, we hope for the best but plan for the worst. i think that's something that has to be answered. by the way, mr. secretary, i think you showed great wisdom in your choice of colleges when you were younger as well. >> thank you, mr. chairman. >> senator graham. >> thank you, thank you all three for dealing with what i think is a very difficult issue, the issue of great national security importance. i know you've got a tough portfolio to deal with. i want to go into the questioning with that understanding.

senator donnelly, i had this very conversation with president obama probably three years ago. i was supporting transferring the prisoners from guantanamo bay back to illinois in a maximum security setting controlled by the military. we worked through what would happen. all these people have had habeas hearings entitled to a habeas hearing. no one is at guantanamo today without a federal judge finding the government's evidence is sufficient to hold them as an enemy combatant. if you transfer them back to the united states you create new legal rights. we had a law of war statute to govern that to make sure they wouldn't walk out the door. we went through that process. the problem is you've got to admit we're at war. you have to tell our friends on the left these are not just common criminals and they will be governed by the law of war, not common criminal concepts. it's unfortunate we could not

close that discussion because i think it would have been better for all of us. my goal is to keep people in jail that represent a national security threat to the united states. common sense would tell us that if you're still in guantanamo bay after all these years, you're probably a high risk -- >> let's have the rule of law back! those people, most of them were innocent! all right. arrest me! this country is disgusting! you have betrayed the constitution. what is wrong with you american people! what's wrong with you, america! what's wrong with you! i don't care, put me in jail. i don't care. >> i think he may get his wish. i'm a military lawyer, served with this man behind you. i really want to conduct the war within the values of our country. i want to be tough on the enemy, but also follow principles that have guided us as well like the geneva convention and treating

people under the law consistent with the requirements of the law of war. would you agree with me anybody left in guantanamo today is probably a high risk threat? we wouldn't have kept them that long? just common sense tells you if you're still in jail after all these years, you've had numerous review boards, that you're probably dangerous in the eyes of the people who say you still should be there? >> i would agree that all of them pose some risk. there are however many -- >> i'm not talking about some risk. i'm talking about obvious common sense here. >> i would say, senator, several of these people remaining were cleared or approved for transfer six years ago. we just have not found a place to send them. >> well, is that -- what percentage of the population falls in that category? >> it's around -- around 50. >> okay. so what percentage -- what

percentage -- they were cleared six years ago, holding 50 people because we can't find a place to put them. >> 54, sir. >> 54 out of how many? >> 122 remain. >> so of the rest of them, would you agree they are high risk? >> several of them are under prosecution, so definitely in those cases. >> take them off the table, right? >> the remainder have previously been determined to be held and should be held under law or detention and we didn't have a prosecution option but those are going through the prb process to take another look. >> we have 50 people no place to send them and the rest of them are either going to be prosecuted or represent a high risk to the country. >> like i said, we're taking a new look at the prb process. >> the previous prbs concluded they had a high risk, right or they wouldn't still be there. the only thing is are you going to create a new prb process politically motivated to let these guys out or go with past judgments. because i don't think these guys

are getting any better. do you agree with the obama administration we're at the end of hostilities and that justified the release of the taliban 5? >> we're not at the end of hostilities in afghanistan. >> they said the reason we transferred the taliban 5 is because you traditionally swap prisoners when hostilities are over, therefore we get our guy back because the war is basically over and we release five of the taliban. i agree the end of hostilities that justice the transfer of these five is ridiculous. so i don't know why the administration would say that. do you? >> well, i said -- i agree with you, sir, hostilities are not over. >> great. >> i couldn't agree with- >> let's go for it as a committee. no one should be transferred because of the concept of end of hostilities. second, if you have any

deficiency and legal authority to hold these people, would you please inform the congress of what you need that you don't have and i bet you in a bipartisan fashion we can provide it to you. >> ye. >> do you feel like you have a deficiency today? >> not today. >> do you feel like you will have a deficient sin the near future? >> in afghanistan, not in the near future. in a couple of years, we may. >> well, the couple of years is in the near future. so i challenge you to send to us legislation that would deal with the problem that's two years away because i finally want to get ahead of the war on terror and not always play catch-up. thank you very much for your service. >> thank you, chairman. >> i actually want to return to this point and return to the point that i think not only senator graham made but senator donnelly made. there are some of these folks

who will never be transferred, never be released that are clearly a real risk. at some point if we want to close guantanamo we need to do something with them and if you don't have statutory authority to insure their detention, should they be transferred to some sort of high secure facility in the continental united states, i suggest you spell out what kind of authority you need and ask this body for that authority because at some point, we're going to have to deal with that situation. i want to return to the statistics quickly the data and make sure i understand those correctly. i have heard repeatedly again and again from not only colleagues but in this press of 30%, 33% recidivism. i want to make sure i understand and you're very clear about the data. if i understand your testimony, that since the inner agency review process was put in place,

since that time the recidivism data suggests you reduced that from 33% in the previous administration and now 6.8%, with another 1.1% potentially suspected. is that an accurate trend? is that what your testimony speaks to? >> sir, i'll let many rasmussen speak to this because the data is owned by the intelligence community. >> senator, i think the 30% number comes from the two numbers both brian and i cited in our prepared remarks. that is the assessment of the community that of the 620 overall detainees regardless when, who have been transferred from guantanamo, a little over 17% of them have been confirmed by the intelligence committee having reengaged in terrorist activities. 17% confirmed. a little over 12% fall into the

suspected of re-engagement category i stated earlier. in aggregate, that would be 30% of the total population of folks- -- >> if you just look at post population of folks. >> and if you just look at the post interagency review. >> if you break out the number of detainees that have been transferred since the 2009 interagency process in which the dni, director of national intelligence has played a role, that number is 6.8% confirmed with 1.1% or one detainee. that's a suspected number. we owe you and the rest of the congress a march update on that in our next report. >> we very much look forward to that. obviously any level of recidivism is unacceptable but that is immense progress. i want to touch on the costs of this facility the fiscal costs. we have spent about $5 billion on this facility since it opened in 2002.

on average about $493 million each year for the last five years and in 2014 the american taxpayer spent more than 3 million per guantanamo detainee and $70 million it costs to house a prisoner at colorado super max prison. so i would ask either of you given the austere budget environment we are in today, and i hope we do something on this committee about that and the myriad of very real threats are we spending those tax dollars in a way that gives us the maximum security return on our investment. i ask your opinion on that as well. >> probably better deferring to my defense department colleagues on that. in terms of operation of the facility and the costs associated that falls squarely in d.o.d.'s budget.

>> it goes back to the relative risks that we were talking before that senator king brought up. >> senator, the numbers sound right. the number i have for fiscal '14 is $400 million for guantanamo. the numbers i've heard of cost of one person at super max is around $80,000. no the president has taken the view that this drains our resources and we could secure these prisoners for much less. we're not focused primarily on the cost, we're focused more on the national security view that it's a risk to our security to keep guantanamo open. the cost issue is accurate. >> thank you. >> senator cotton. >> mr. mccain in early december the members of the senate intelligence committee sent secretary hagel a classified letter about the guantanamo five. i can't discuss the content of that letter here. it's been almost two months now. we would like to receive a

response before proceeding with mr. carter's confirmation. can you talk to the secretary and see about getting us a prompt response to that letter? >> sir, certainly. and i know the answer should be coming shortly for reasons that are not clear to me although the letter was dated in early december, i think we only received it in the department about three and a half weeks ago. >> okay. mr. rasmussen you said in your opening statement that anti-american incitement or statements does not equal recidivism or re-engagement. does it violate the memorandum of understandings that we have however, with the receiving countries? >> i can't speak in this session about the specific understandings we have with the partners with whom -- the countries with whom we have worked to transfer detainees but one of the key features of any of those agreements is of course monitoring ongoing activity by the detainees which covers a wide range of factors and would certainly include all manner of their activities. my comments in my prepared

statement just spoke to the definitional threshold for what would constitute re-engagement for the purposes of a threat assessment. >> we consider antiamerican incitement by islamic terrorists pretty serious business don't we? >> absolutely. >> al wa lack can i would say we consider it serious business wouldn't he? >> absolutely. >> mr. mccain you said earlier to senator graham that the united states, they're barred to bringing guantanamo detainees to the main land. it's barred without releasing them for 30 days congressional notification. why should people believe that will be more respected than the prior notification was last year? >> sir, the lack of notification in the bergdahl case has not been repeated. i don't expect it to be repeated. >> my point is all laws are created equal.

there was a law that required prior notification. it was violated. this administration has a habit of surprising the american people in national security matters. what assurance can we receive that there will not be a guantanamo detainee on our shores tomorrow morning? >> senator what i can say as to the 30-day notice issue, our lawyers believe we had a valid legal reason for the action we took and we'll get you that explanation. on the issue that you're asking, we are focused on transfers in the prb process. i'm not aware of any conversations not to follow the current statutory bar. >> okay. now i want to explore the so-called risk balance between recidivism of released terrorists and the propaganda value that terrorists get from guantanamo bay. how many recidivists are there at guantanamo bay right now. >> i'm not sure i follow the question. >> how many at guantanamo bay are engaging in anti-americanism or excitement.

>> they're knocked down. >> they're detained. they only engage in that recidivism overseas. now let's look at the propaganda value. how many detainees were at guantanamo on september 11th 2001? >> zero. >> how many were there in 2000? >> zero. >> what about in 1998 when they bombed our embassies. >> the facility was not open before 2002. >> 1993 and the first world trade center? >> same answer. >> 1979 when iran took over our embasy. 1983 when hezbollah bombed our marine barracks in lebanon. the answer is zero. >> correct. >> they don't need a reason to attack us. they attack us for who we are. it is not a security decision, it is a political decision based on a promise the president made on his campaign to. say that it is a security decision based on propaganda value that our enemies get from it is a pre-text to justify a

political decision. in my opinion, the only problem -- good afternoon everybody. it's nice to see you all. we had settled in for this afternoon. i do not have any announcements at the top, josh, so let's get to your questions. >> speaker boehner has announced that pope francis will deliver a speech to a joint session of congress in september becoming the first pope to do that. i was wondering does the white house have any reaction to that? was that visit coordinated with the white house in advance? >> didn't used to have to ask those questions, did we? i can tell you that the president and his team have been anticipating a visit from pope francis for quite some time. even as far back as the president's visit to the vatican where he first met pope francis talked about how eager he was to welcome the pope to the united states. so the president is certainly looking forward to his visit. >> there is some talk on the

hill about the use of military force. speaker pelosi is talking about know negotiations around islamic state militants. wondering if you have any thoughts on how that is shaping up and specifically on that three-year time frame? >> well, i think, josh any time you see details starting to leak off the hill it's an indication there have been an increasing number of conversations between administration officials and officials on capitol hill. that is follow-up from some of the work that grew from the bipartisan leadership committee meeting that the president convened here at the white house two or three weeks ago where they discussed the -- essentially the idea that the administration would work with democrats, republicans on the hill on a piece of language that the white house could submit to capitol hill and that work is ongoing.

they've made important progress in that regard and as i mentioned yesterday at the briefing, i would anticipate that we'll have specific language that we'll sends up to capitol hill relatively soon. i believe at that point we would be in a position to make that language public. we'll be in a better position to actually discuss what's included and why it's included. >> do you have a position about whether the original aumf that was used for iraq from 2002, whether that should be repealed as part of having a new aumf? >> i think the president has made the case previously that he's been -- that he does support the repeal of the 2002 aumf. this was in the context of a speech that he gave a year or two ago talking about the need to review some of these policies that have the -- i think the unintended effect of keeping the united states on a permanent war footing. the president has talked about how he wants to place a priority on trying to reform some of those policies in a way that

acknowledges that we don't have to be on sort of this permanent war footing. the president can wind down the troop presence in iraq and afghanistan. we obviously have made substantial progress in that regard. when the president took office there were 180,000 military boots on the ground, american military boots on the ground in iraq and afghanistan. that number now is less than 15,000. there are some steps the commander in chief can take on his own. there are other policies that require legislative action. you've noted one of them. >> the leaders of france and germany are headed to kiev if they're not already there with a new piece proposal that seems to be getting some positive initial reaction from russia. they also seem to be not too keen on the u.s. sending -- or considering sending lethal assistance to ukraine. so i'm