chairman of the joint chiefs and finally secretary of defense. under section 1035 of the nda they decide if it is in the action of the united states and if actions plan to be taken to substantial substantially reduce the risk of the terrorist engaging in terrorist or hostile activity that threatens the united states or u.s. primary interests. -- u.s. persons or interests. the primary concern 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 possible of re-engagement very seriously. the most recent public data on re-engagement of former detainees was released last september, and the data is current as of july 2014. there is a lag in the public reporting. i know you may have seen a more recent classified report on this matter. the office of the director of national intelligence categories -- categorizes the figures in three ways.

the totals for before 22nd january 2009, when president obama signed the executive order and total after january 22nd 2009 referring to detainees who this is how the data break down. the total number is 17.3% confirmed of re-engaging. 12.4 percent suspected of re-en re-engaging. before january 2009, the numbers showed 19% confirmed and 14 .3% suspected re-engaging for a total of 33%. the data after january 2009 shows that 6.8% confirmed of re-engaging. six out of 88 transfers. 1.1% suspected for a total of 7.9. the rate of re-engagement has

been much lower, attesting to the rigor of this process. of the detainees transferred during the administration, over 90% are either confirmed or suspected of re-engaging. this speaks to the security measures the receiving government intends to take pursuant to domestic laws and determinations to mitigate the threat. one additional point about the data. of the 107 confirms of re-engaging, the vast majority transferred before 2009 48 are dead or in custody. re-engame is not a free pass. we take reports of suspected or confirmed re-engagement seriously and work closely to mitigate or take follow-on action. i cannot discuss the specific security issues received from foreign governments with

specificity in open session. we see the ability to restrict travel monitor, provide information and 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 to mitigate the risk. the periodic review board process is an interagency process to establish whether continued detainment at guantanamo is necessary to protect national security. we will provide staff more information about the process. six detainees have been made

eligible for transfer with appropriate security assurances frunt -- prudent to this -- persuant to this process. efforts are made to expedite this process and prioritize hearings. you asked us to address the legislation recently introduced by senator ayotte and several members which i understand may be marked up by the committee next week. in our view, this legislation would effectively ban most transfers for two years and reverts to the previous schedule that resulted in only court ordered transfers transfers pursuant to plea agreements and use of a few national security waivers. it adds the ability to limit transfers based on gtmo threat assessments that may be updated.

we believe any decisions 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 aggravated guantanamo bay detention center, the administration will oppose it. 76 yemenis remain at guantanamo. 47 are eligible for transfer. two have charges reviewed and one is serve presentence confinement. a ban on transfers to yemen is unnecessary because we're not seeking to transfer any 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 favorave case-by-case analysis not a single detainee was transferred to yemen. the 12 that were transferred recently were transferred to

five other countries. let me talk about, in summary, what our plan is. our plan to close guantanamo has three main elements. first, we will continue the process of responsibly transferring the 54 detainees eligible. second, we will continue the prosecution of detainees in the military commission's process and if possible, in federal court, third we will continue and expedite the p.r.b. process. when we have concluded these lines of effort, it is likely several detainees cannot be prosecuted because they are too dangerous to transfer even with security assurances and will remain in our custody. ultimately, closing the detention center will require us to consider additional options including the possibility of transferring some detainees to a secure facility in the united states. the department of justice has concluded that in the event

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 barred by statute and the government is prohibit friday prosecute anything detainees in the united states even if it's the best or only option for bringing them to justice. the president has curtailed these restrictions. you asked us to address what happens if someone is camentured on the battlefield. the disposition of an idea cearpted captured in the future will be considered on a case-by-case basis. when a nation is engaged in hostilities, detaining them to keep them off the battlefield is necessary.

in some cases they will be transferred to third countries. some cases may be appropriate for law voyeur detention. the president has made clear we will not add to the population of the detention center in guantanamo bay. president bush worked toward closing guantanamo. we are closer to this goal than many may think. of the nearly 800 detainees held at guantanamo since it opened in 2002 a 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 but 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 asking for your testimony, that is introduce the witnesses. secretary mckean, who just presented testimony is principal deputy under secretary of defense of policy in department of defense. mr. rasmussen is officer of the director of national intelligence and admiral voice meyers is with current operations joint staff. do you have a statement? >> i believe i'm next. thank you for the opportunity to appear before the committee for this discussion concerning guantanamo detainees. i'll discuss the intelligence community's support for the transfer process that brian outlind, specifically the analysis the intelligence community provides. the community provides a range of tailored intelligence

assessments aimed at helping -- >> adjust your mic please. >> the intelligence community produces a range of tailored intelligence assessments aimed at helping policymakers make decisions about the potential transfer of detainees from the guantanamo detention facility. these assessments include profiles that examine factors relevant to whether individual detainees pose continuing threats to the united states or allies. to echo brian's remarks we take the risk of re-engagement seriously. the community is evaluating the global threat environment and works to keep decision makers informed of developments especially with respect to threats to the united states. as you know, we continue to face threats from a wide range of actors -- al qaeda and affiliates, isil, and those inspired by violent messaging. the full force of these groups such as isil and isis is felt most acutely in iraq, syria and middle africa.

today's threat is largely characterized by smaller scale attacks. the majority of attacks conducted in the west in the last eight months were conducted by individual terrorists. accordingly, the isis analysis on current guantanamo detainees focuses most closely on the potential for these detainees to threaten the u.s. and its interests overseas after they leave guantanamo. these assessments aim to provide a comprehensive understanding of the detainee's background, current mindset and any links to individuals or groups that pose a terrorist threat. those assessments take into account the evolving terrorist threat to the united states as well as security developments overseas including in the detainee's home country, in conflict zones and potential transfer destination. intelligence community products do not state whether a detainee poses a high, medium or low risk of re-engagement because we assess the likelihood for a detainee to re-engage is shaped

by a combination or synthesis of a number of personal and environmental factors. in addition to this individually focused analysis i.c. also provides assessments about potential destination countries capabilities and willingness to mitigate a potential threat. brian mentioned reengagement. i'd like to discuss our role in monitoring individuals in the intelligence community. once a detainee is transferred from guantanamo, the i.c. continuously monitors for indications of re-engagement and work closely with liaison partners to ensure the fullest understanding of a former detainee's activities. through a coordinated process that draws on the assessments of eight different intelligence agencies, we determine whether to delegate a detainee as re-engauged. we determine whether a former detainee is confirmed to having

re-engaged when a perponderance of information confirms. we confirm if we assess that plausible or verified or single-source reporting indicates an individual is directly involved in such activities but it's important to note for the purpose of these definition, engagement in anti-u.s. statements or propaganda activities does not by itself qualify as terrorist or insurgent activity and it's also the case that some former detainees have been added to the list of suspected re-engagement candidates and later removement after information came to light suggesting that the individual had not re-engaged. to run through the numbers brian cited, 107 or 17.3% of the 620 detainees transferred from guantanamo had been confirmed of re-engagement in terrorist

activities as of september 2014. at the same time, the i.c. assessed an additional 77 former detainees, 12% were suspected of re-engagement. of the 88 transfers that have occurred since the interagency process that the director of national intelligence participates in was implemented in 2009, 6.8% of those transferred during that time have been confirmed of re-engagement with another 1% suspected. in the next unclassified report that the intelligence community will put out on re-engagement numbers is expect the out in march and will be updated to reflect the most recent activity. i suspect those numbers will largely be in line with the trends i've outlined. i'll stop there, senator reed, and look forward to your questions. >> thank you very much. admiral meyers? any comments? >> thank you, member reed,

distinguished members of the committee. thank you for having me here today to discuss this important topic. as the joints' staff representative come capacity of current operations, i appreciate your efforts and focus on this matter. may i extend my personal thanks for your unwavering dedication and support to the men and women of the armed forces. i look forward to answering your questions. thank you very much. >> thank you for your statement. admiral. it's succinct and to the point. let me first ask, there was a letter of reference from 42 general officers addressed to senator mccain and myself and i would ask that it be part of the record. hearing no objection so ordered. with the presumption that chairman, when he arrives, will be immediately recognized, let me ask a few questions and begin to recognize my colleagues. you both testified at that trend line 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. we've transferred a number of people recently, it's probably too soon to say whether they've re-engaged or not because they're still getting settled but we don't have indications for -- we 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, the circumstances of the individual, the country which he or she goes back to, anything like that? so this is a continuing learning experience and you feel you're getting more capable of making

judgments about the -- usefulness of the returning individual? >> yes sir, we take a very close look not just at the individual who may be transferred but the assurances that the country agrees to sign up to and capability of its own security services to uphold the agreement and the i.c. and the embassy help us with that assessment. >> and there is a check on thea, shurnss that are given by these various countries so we are confident they have both the capacity and the will and are 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 refer 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 point with respect to recruitment retention, magnifying their operations. is that your -- the assessment of the intelligence community? >> yes, senator. from the director of national intelligence's perspective who's asked to weigh in on these transfer decisions, from the perspective of intelligence, what underpins all of his decision making in this regard is an analytical judgment that he has made, that the community has made, that the benefits to national security from closing guantanamo in some cases in many cases, outweigh the risks incurred by releasing individual detainees and it's precisely because of that continued featuring of guantanamo in the

terrorist narrative that he's made that calculation. the fact that guantanamo features in terrorist propaganda, features in terrorist recruitment and we assess that it has continued significant resonance in the population that our terrorist adversaries are trying to recruit among. isil has used guantanamo in its english language propaganda including their online english language magazine. a.q.a.p. al qaeda in the arabian peninsula, operating in yemen, has used guantanamo in their propaganda and it's noteworthy that al qaeda's senior leader, al-zawahiri continues to reference gaunt no in communications with al qaeda members around the world. >> in is a specific issue we have to face. general kelly, commander of u.s. south command, has voiced concern about the medical facilities there. you have an aging population of

individuals and last year, in the senate version of the defense authorization bill, we put in lightning -- language to allow for the temporary transfer because of a medical condition to a more appropriate facility for care in the united states. this was not ultimately adopted. but is that something that concerns you going forward, just in terms of a population that obviously is going to be -- this closure is delayed, more and more in need of specialized care? >> it does, senator. there are certain members of the population with acute healthcare issues and as they get older those are continue to get worse so i was down to visit a couple of months ago and had a conversation with j.t.f. commander about this and his concern is it's quite expensive. they have to bring in specialists to treat individual

matters from the states, and 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 said 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 and my question for anyone on the panel would be, were the five talabanis who were released subject to the periodic review? >> they were not, sir. >> they were not. 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 burgwill

do. >> so they exchange did not go through the process? >> the periodic review board process makes a determination whether detention of an individual is still permissible. the statute you have given us requires the secretary still to make the determination prior to any transfer of the national security interest and the substantial mitigation of the risk and that, sir, that was undertaken. >> i i don't believe you were there at the time. why do you think the department decided not to notify congress as per the statutes? >> sir, i believe -- >> what's the legal basis for that, as well? >> sir, i used to be -- still a lawyer technically and counsel

on senate foreign relations committee for many years but they've stopped paying me and it would be malpractice to opine on it. my understanding is that the department of justice and general counsel of the department interpreted the president's powers because of the security risks and safety of sergeant burgdal, necessitied preeth -- proceeding without 30-day notice. >> another release for afghanistan nationals, i believe back in december, why did the administration not require continued detention of these four detainees? >> sir, these individuals had been i believe, cleared for transfer -- approved for transfer in 2009. >> did they go through the periodic -- >> no, they were already cleared -- approved for transfer by the 2009 task force, sir.

>> the other 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 make a determination is available to that counsel. is that same information available to the public or to the 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 is a military officer. he can employ private counsel and if said person is given clearance, we can share certain classified information. we have tried to have some measure of transparency with the p.r.b. process in releasing information about the hearings on the department website.

we are not able to share everything that's available to the p.r.b. 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 it's all about, it seems to me, is it more dangerous for the national interests to keep guantanamo open because of its use as a recruiting tool, or is there a greater risk of people being released re-engaging? give me your thinking on that. is that the question? >> happy to answer that, senator king. because the director of national intelligence does have a voice in the prices to approve a

transfer, he does look at, as i said earlier, all of the relevant information related to the detainee's specific background, background before going to guantanamo, during the course of detention at guantanamo and anything about the environment into which he might be transferred. at the same time, he has that underlying analytic judgment that the director of national intelligence has been very clear about that, there's a cost in terms of our national security that we're bearing because of the continued operation of guantanamo in the context of recruitment and potential radicalization of future terrorist adversaries. so the weighing process that he goes through looks at both factors. that does not mean in all cases he will look at detainees and say, ah, continuing to operate guantanamo creates too big an obstacle for him to oppose a transfer. it is still the case that there

are some detainees that he would consider too dangerous to return in a transfer -- almost -- unless there are extraordinary arrangements made for their monitoring and disposition overseas. so thattical --ical class that has been made is not a cookie cutter calculus but a continued assessment. >> if this is one of the key questions, and is 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-zawahiri said, or a real set of materials, written materials, the way it's being used. because it seems to me that's one of the most important questions we have and if we're going to decide to close the facility or collectively the united states government will decide to close the facility, based upon that we better know

that it's real and not just a perceived threat. mr. mckean is the administration contemplating a further executive order to close the facility beyond what the current process is -- 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, p.r.b. process, and i'm blanking out on the third one. >> but there's no further -- you don't know of any other contemplation of additional executive -- exercise of executive authority to simply close the facility? >> i am not, sir. we are operating under the president's executive order from

2009. >> the question that bothers me is ok if we decide it's in the national interest to close it there are still people there that are 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 some very bad guys here, put them in maximum security prisoners under the assumption they're law of war detainees and then find they're subject to habeas and we don't have enough evidence to convict them in a federal court. you understand where i'm going with the legal question? >> i do, sir. on the second question, detainees are already subject to habeas, they can file habeas petitions in the d.c. circuit pursuant to supreme court ruling. >> there's no difference between guantanamo and someplace 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 and it's performed by -- informed by the law of war so if we did reach a point where the 2001 aumf was repealed by congress or we decided it was no longer sustainable based on the situation in afghanistan, we would have an authority issue to wrestle with, no question about that. >> thank you, gentlemen. thank you for your testimony. mr. chair, welcome back. >> your other members that were in attendance at the national prayer day breakfast will be coming in and that obviously is the reason for me being late. i want to thank the witnesses. thank you, senator reed, for proceeding. i will withhold my questioning until senator sullivan

>> thank you, mr. chair and thank you, gentlemen. mr. rasmussen, congratulations on your recent appointment. so i want to follow up on senator king's questions. there's a lot of discussion here about guantanamo -- how it 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. and i think that that is one of the big concerns, certainly of this committee and members of congress. and i'm certain also members of

the administration. so from a broad perspective, of the remaining gtmo detainees how many are currently assessed to be high or medium risk? >> senator, i don't have those numbers at my fingertips. if you're referring to the assessments that were done by jtf-gtmo back in the last decade, my impression is knowing the population of that which we've already transferred using those categories, i think we have transferred most of those who are low-risk. but i don't know the precise data. i would have to get that to you, sir. >> but i mean, of the current remaining detainees, we don't have a handle on who is high or medium risk right now? >> i don't have that at my fingertips. as both i and nicholas rasmussen explained, sir, 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 have

behaved at guantanamo, what their current -- what our assessment is of their intentions, so it's not just to look at the assessments that were done >> mr. secretary, you're not answering the question. if you don't have the information, then submit it. it's important for this committee to know who is 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 that these risk levels, in terms of who is in what category, is classified. so we would be happy to have this conversation with you in a classified context as well. i just don't have those numbers at my fingertips. i think it's safe to say many of them are in the medium to high risk category. >> well, it would be very important for us to know that as we move forward. >> yes, sir. >> senator tillis touched on this issue of the notification of congress. and i think a lot of people were very disturbed by that. just by reading it in 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 question -- 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 is 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 gao 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 have provided it to the committee. but if we have not, we will submit it. >> one other thing. i know that -- 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 go and do whatever they want return back to afghanistan? i think, again, that's a concern not only for this committee but for the american people.

>> you're correct about the one-year matter, sir. we -- the agreement between our two governments is classifieds. we briefed to your staff. and i think some of the members in closed session. and i'd want to get into that in a closed session, about what happens after one year. >> ok, 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 the judge orders a 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 a 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, we will -- it's a very good question and we will have to plan for that possibility. we don't expect that would happen, if we brought the detainees here. but -- >> but it can? i mean, we don't expect it but we can, so what do we do with that person? it has been suggested -- i heard some say, well, 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 that we had some continued authority to keep them. i don't think we would roll the dice on losing the authority to detain them.

>> and then additionally, what's your assessment of the risks involved in this situation? i mean, that's, i think -- you know, as we look through this whole process, this is one of those conundrums that 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 i believe the department of justice report speaks in some -- and homeland security department analyzed all these issues in some detail. we are, of course, currently barred from bringing the detainees to the united states. >> no. i understand. but if they do come here -- that's -- i was on a trip to guantanamo recently. and 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. and 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 -- you know, other than the taliban five, how many 30-day congressional notifications meeting the requirement of the fy14 and daa -- ndaa has been sent to the committee in the past year? >> i don't know the number. in all the other cases, the 30-day notice was provided. >> ok, and then there's some concern that the detainees that are being transferred -- it's on an assessment from more than four years ago, by the guantanamo review task force. as we look at this, the periodic review board 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 has caused the slowness of this? >> so i want to separate two things here, sir. if somebody has 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 a 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 or they can be approved for transfer. we had -- it took some time to stand up the prb process. and it's gone a little bit slowly, but we're trying to pick up the pace. >> okay. and just to -- as i wrap up here, from that trip, which was a little bit ago, i mean, that's

-- the question that i asked is the question that has stuck with me, is, what are we going to do with this person? we hope for the best, but we plan for the worst. and so i think that's something that has to be answered. and 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. an issue of great national security importance. and so i know you've got a tough portfolio to deal with. so i want to go into the questioning with that understanding. now, to 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 max security setting controlled by the military. and we worked through, what would happen?

all these people have had habeas hearings, are entitled to habeas hearings. no one is at guantanamo bay today without a federal judge finding that the government's evidence is sufficient to hold them as an enemy combatant. so if you transfer them back to the united states, do you create new legal rights? we had a statute that would -- a law of war statute that would govern that, to make sure they just wouldn't walk out the door. we actually went through that process. but the problem is, you've got to admit that we're at war. you've got to tell our friends on the left that these are not just common criminals and they will be governed by the law. -- 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 - >> that's not the rule of law! those people! they were already cleared! all right, arrest me! this country is disgusting! you have the constitution! this -- we're the american people! what's wrong with you, america? what's wrong with you! i don't care anymore! put me in jail if you want. i don't care! >> i think he may get his wish. i am a military lawyer. i 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 well, like the geneva convention and treating people under the law of war consistently with the requirement -- consistent with the requirements of the law of war. but would you agree with me that anybody left in guantanamo bay 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 - >> no. no. i'm not talking about some risk. i'm talking about obvious common sense. >> several of these were 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 50. >> previously cleared? okay. so what percentage that were cleared six years ago, that you can't find a place to put them? >> 54. >> 54 out of how many? >> 122 remaining.

>> okay, so the rest of them would you agree that they are high risk? >> several of them are under prosecution, so definitely in those cases. >> take them off the table right? >> and the remainder have previously been determined to be held and should be held under law of war detention, and we didn't have a prosecution option. but those are going through the prb process to take another look. >> right. okay. 50 people who we've got no place to send them. 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 look at the >> the previous prb concluded they are high risk or they wouldn't still be there. so the only thing is, are you going to create a new review process that is politically motivated to let these guys out or are you going to go with the past judgments? because i do not believe these guys are getting any better.

do you agree with the obama administration that we are at the end of hostilities and that justified the release of the taliban five? >> we're not at the end of hostilities in afghanistan. >> well, they said that the reason we transferred the taliban five 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 commanders of the taliban. i agree with you. the concept that the end of hostilities justifies the transfer of these five is ridiculous. so i don't know why the administration would say that. do you? >> well, i agree with you, sir that hostilities are not over. i did not agree with your other assertion. >> well, great. so let's just -- let's go forward as a committee. no one should be transferred because of the concept of the end of hostilities. second, if you have any deficiency in 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.

>> yes. >> do you feel like you have a deficiency today? >> not today. >> do you feel like you'll have a deficiency in the near future? >> in afghanistan, not in the near future. in a couple of years, we may. >> well, the couple 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 not always play catch-up. thank you very much for your service. >> thank you, chairman. and i actually want to return to this point, 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. and at some point, if we're going to close guantanamo, we need to do something with them. and so i would suggest to you

that if you don't have adequate statutory authority to ensure their detention should they be transferred to some sort of a high-security facility in the continental united states, i would suggest that 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 the press of 30%, 33%, recidivism. i want to make sure i understand and that you are very clear about the data. if i understand your testimony since the interagency review process was put into place, that since that time, the recidivism data suggests you've 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 mr. 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. and that is the assessment of the community that, of the 620 overall detainees, regardless of when, who had been transferred from guantanamo, a little over 17% of them have been confirmed by the intelligence community of having reengaged in terrorist activities. 17% confirmed. another 12%, a little over 12% fall into these suspected of reengagement category that i mentioned earlier. in aggregate, that would be 30% of the total population of folks. >> and if you just look at

post-interagency review >> if you break out just the number of detainees who have been transferred since the 2009 interagency process, in which the director of national intelligence has played a role that number is 6.8%, confirmed with 1.1% or one detainee suspected. that's an ongoing 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 cost of this facility, again, the fiscal cost. 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.

compare that with about $78,000 that it costs to house a prisoner at colorado super maximum 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 a maximum security return for our investment? mr. rasmussen, i would ask your opinion on that as well. >> i'm probably better deferring to my defense department colleagues on that, because, again, in terms of operation of the facility and the costs associated, that falls squarely in d.o.d.'s budget lane. >> it goes back to the relative risks that we were talking about before, that senator king brought up. >> senator, the numbers sound right. the number i have for fiscal '14 is about $400 million on

guantanamo, and the number i've always heard about the cost of one person at super max is around $80,000. no, the president has taken the view that this drains our resources and that we could secure these prisoners for much less. we're not focused primarily on the costs. we're focused more on the national security. we view that it is a risk to our security to keep guantanamo open. but the cost issue is also there. >> thank you. senator cotton? >> mr. mccain, in early december the members of the intelligence committee sent secretary hagel a classified letter about the guantanamo five. i can't discuss the contents of that letter here. but it's been almost two months now. we'd like to receive a response to that letter, 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, though 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 necessarily equal recidivism or reengagement. 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 our -- with the partners, 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 kind of a definitional threshold for what would constitute reengagement for the purpose of a threat assessment. >> we consider anti-american incitement by islamic terrorists pretty serious business, don't we?

>> absolutely. >> and where al-awlaki would say we consider it very business wouldn't he? >> absolutely. >> mr. mccain, you said earlier, to senator graham, that the united states, the administration is barred from bringing guantanamo detainees to the united states mainland. it's also barred from releasing detainees without 30 days congressional notification. why should the american people believe that that obligation will be any 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. >> but my point is that all laws are created equal. there's a law that prohibits detainees from coming to guantanamo bay. 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 believed we had a valid legal reason for the action we took, and we'll get you that explanation. on the issue that you are asking, we are focused on transfers and the prb process. i'm not aware of any conversations not to follow the current statutory bar. >> 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 terrorism or anti-american incitement? >> they are pretty locked down. i don't think they are -- >> because they are detained. because they only engage in that kind of recidivism overseas. now let's look at the propaganda value. how many detainees were at guantanamo bay on september 11 2001? >> zero. >> how many were there in

october 2000, when terrorists bombed the uss cole? >> zero. >> what about 1998 when they bombed our >> the facility was not open there. >> 1979 when iran took over our embassy? 1983 when hezbollah bombed our embassy and marine barracks in lebanon? the answer is zero? >> correct. >> islamic terrorists don't need an excuse to attack the united states. they don't attack us for what we do. they attack us for who we are. it is not a security decision. is it a political decision based on promises the president made in his campaign. to say it is a security decision based on propaganda value that our enemies get from it is a pretext to justify a political decision. in my opinion, the only problem with guantanamo bay is there are too many empties beds and cells there right now. we should be sending more terrorists there to keep this country safe. as far as i'm concerned, every last one of them can rot in hell. but as long as they don't do

that, then they can rot in guantanamo bay. >> thank you, mr. chairman. on that happy note - [laughter] let's -- i had really the same feeling that senator cotton had, for a lot of other years. then i went to guantanamo with some other senators. and i came back changed. and i asked my chairman here and he gave me some insight that he had. and i know everybody is trying to form their own direction and their own thought process on this. i can only tell you what i saw. i would not ask, if your child was in the military, and a guard, in that detail, i would not ask anybody's children to be in that position, guarding in that type of a condition there because i'm seeing that the abuse that our prisoners have on

our guards. i couldn't believe it. and i -- i'd like to see a few of them in the united states hardened prison, to see if they'd change their attitude just a little bit. i know we could do a little different job on them here than they're doing over there. so all i've heard about propaganda, i have to agree with senator cotton on that. i don't think they need an excuse to attack america. to me, that doesn't hold water. what does is, $3 million per detainee and $80,000 to the hardened prisoners we have here. we have nobody escaping. we don't have anyone escaped from america. my understanding, and maybe you all can help me with this, because i have to form my own opinion on where i would be on this if we had to vote. do you close it? do you keep it? what do you do with the prisoners, the detainees, what do you do with the ones who are held for crimes and trials and things of this sort? i know there's a lot of legal things that are formulating these decisions.

but there's got to be a way to do it to where you don't have them all in a cluster to where they can scheme and talk and plan and plot and then go right back into the fight. so have you all looked at, could we house them here? and do it and feel secured and safe? because a lot of west virginians and americans think, out of sight, out of mind. keep them on the island in , prison, that's fine. but what i saw there, it's not an atmosphere that our guards should be in or our military. used along those lines. -- people with their talents shouldn't be used along those lines. if someone can comment on that could we do it here? i'm sorry. i was at other committee meetings. can it be done safely? and what do you do with detainees? >> right now we're paying somebody else to take care of

them and a lot of them are going back into the fight. i think that's a problem. if one goes back into the fight, that's one too many, if we could have kept them off the battlefield, engaging any of our -- endangering any of our soldiers. >> prisoners of war, give them the rights of a prisoner of war! >> we're going to give you your time to speak, too, honey. i gotta get to this first. admiral mccain? >> on the guard force, as i've seen them in action as well. >> i just want to say that i think in their attack on this country, they lost their rights. that's how i feel about it. >> the men and women of the guard force, who, as you know, many of them are national guards, specialists, i they do a terrific job under -- >> under horrible conditions. >> on the issue of could we do it in the united states, yes, we could.

in the first term, senator graham made some reference to that there was an effort under way to explore a possibility of the government purchasing a state prison in illinois that was underutilized, and using one part of it for the bureau of prisons, and the other part for detainees that the united states military would hold. we would still have military guards, because we're holding them under law of war. >> that's the detainees? >> yes, sir. so we would still hold them under some kind of military guard, were we to bring them into the united states, unless we were able to prosecute all of them in federal court and put them into the bureau of prison system. but there are a number of these detainees we have already determined we would be very unlikely to prosecute in federal court. >> how about the ones that we have charges against, waiting for prosecution? could they be dispersed in the prison systems that we have, our maximum security prison systems?

>> sir, the ones that are currently facing charges and trial are in the office of military commissions system, which we have a courtroom set up there on guantanamo bay that you probably saw when you were there. so it would be the same situation, in the sense that if they were still on trial -- >> it's been 13 years and the guantanamo five haven't been -- >> the 9/11 trial will probably go on for quite some time. if they are convicted and sentenced, they would still be in the military system. but the short answer is yes, we could do it here. it would still be a military guard system. they would not be in the bureau of prisons. >> my time has expired. thank you very much. >> thank you, chairman. my question would be, yes or no. has any suspected or confirmed detainee that's been released from guantanamo been involved in an attack that has killed a united states, nato or coalition service member? >> senator, i don't know the data by heart, of all those who have reengaged.

there are over 100. we'll have to get you that answer. >> well, i think that's very important for people to understand, if any of these detainees have been or are suspected or confirmed for having been involved in killing us, our nato allies or a coalition service member. one thing that was reported in the washington post, that bin cumo, who is alleged to have been involved in the attack on our consulate in benghazi -- what i would like to understand is the 6.8% that the administration is touting that they're doing so well, those are only in the cases of confirmed detainees that have regene i reengaged. does that number include the taliban five number that has now been reported to have engaged in additional activity that would be reengagement for terrorism?

>> the number you're referring to, senator, the 6.8% number predates any consideration of the reengagement status of taliban members you're talking about. the next report due out on that, updating the numbers on this, is due out in early march. we should be in a position then to assess whether reengagement has taken place. >> of course, on may 31, the administration transferred -- of the five they transferred, they transferred a member of the taliban five. fossil was in the northern alliance back in 2001. he served as chief of staff under the taliban and is accused of war crimes. one of the things that shocked me most is that one of the taliban members on the ground said it's the best news he had heard in 12 years. he said fossil's return is like pouring 10,000 taliban fighters in the battle on the side of the jihad. now the taliban have the right lion to lead them in the final moment before victory in afghanistan.

i think the american people deserve to know whether any of the taliban five have reengaged? i'm glad that, as i understand you've confirmed today that there are no conditions on them returning after the year, to afghanistan. in other words, there aren't additional conditions on their release, unless you're telling me that there are. and that's my question i have for the people who have been released in the last month by the administration. and i would just like to ask you, with some of them, so on november 5, 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 of being an affiliate of the most infamous jihadi recruiter in the area. were there any conditions put on this individual's release?

in other words, was he transferred to kuwait to another prison, or was he let go? >> senator, there are security assurances provided with every transfer. i can't get into the specifics of those in this setting. we could do it with you in closed session. >> i think the american people have a right to know whether someone -- >> why is this information classified, mr. secretary? why shouldn't the american people know the conditions under which 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 if they're out where they can pose risk to other individuals? and i won't go -- 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 threat to the united states. one was assessed to have been involved in i.e.d. attacks against the u.s. and coalition forces. one is believed to have been affiliated with al-qaeda at a high level. and in fact, one is described by the die previously as among the top 52 enemy combatants at jtf gitmo who pose the most significant threat of reengagement acts of terrorism if released. i could go on and on about each of the backgrounds of the individuals that 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 reengage 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 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. in terms of the five transferred to 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 you 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 will not reengage. i think that's basic information that the american people need to know. thank you. >> 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 seriously the recidivism 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 -- unconstrained 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 recidivism 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 we are concerned about recidivism 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 violent activity against the united states or any u.s. personnel when they were imprisoned at guantanamo. 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 publicly, so i'm assuming it's no longer classified, but i want to submit that question. >> let me check that for you sir. i am not aware of the quotation from the secretary. >> finally, with an important point for us, we're all concerned about the ongoing viability and efforts in dialogue with the white house to determine whether that should be revised. and i just wanted to underline the continued legal 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 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 committee that have served this nation as you do and senator cotton has been a warrior. he has been a worrier -- 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, 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 cotton's. 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 -- 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 also under trial in the military commission. the terrorist, the people who are at guantanamo have engagedve engngaged in a range of activities from being active on the battlefield to providing support functions to terrorsrship. 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. -- to the taliban as well. >> 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. they will do that. 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 -- to recruit and propagandize. is that a fact? >> purely just judging by an ek -- by anecdotal 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 anecdotal 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 -- feature 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 country that might insist much more on the classification of our own purposes as a cooperation then 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 that hostilities -- any other 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, i will defer. what happens at the end of hostilities? what is the plan for taking care of the issues revolving that may still be there?

individuals held as enemy belligerents 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. following the president's charge that he wants to close guantanamo, 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 statutory 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? >> 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 are assessed. to be high or 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. are detainees 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? go ahead. >> thank you. let me make the point, as we look at the taliban five, i

think the point needs to be 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. it's like pouring 10,000 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 colleague from virginia, but 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 mattis 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. i'm sure you know the general. 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 enough 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? we kept them until the war was over. we did not start this war, and 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 -- not war fighting 301 or advanced warfare. 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 of our war effort 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 mattis' concerns? is 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 currently policy -- the morale of the men and women on the combat forces field have any impact whether it's the same person the first, second time. i do not believe it is impacting the morale as far as those engaging in combat operations. >> ok, 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 impact whether it's the same person the first, second time. i do not believe it is impacting the morale as far as those we had them 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 -- it seems to me that is one of the fundamental problems we

face here. the other question i would like to ask, if we get al 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 iii courts. will they be told they have a right to remain silent mirandized? >> 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 would you interrogate them?

>> in site, in situ, 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. >> 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 senate 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 is as we sit here to the chairman's point, so many questions remain unanswered, including having baghdadi or zawahiri on a 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 three case, we would ultimately bring them to the united states in new york or virginia where these kinds of cases are normally prosecuted. if not, we would look at whether we could prosecute them through the military commissions process. we would certainly interrogate them for some time. >> except you know of course once they go into an article 3 court, they're entitled to miranda, they're entitled to rights to a speedy trial, so we aren't going to get a chance. >> we would do the interrogation with an interrogation team, 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 i.c. investigation to then build the case, so it would be a separate interrogation. we would be able to get the intelligence value. >> we held 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 or the head of isis 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 federal court system, mr. warsami gave us plenty of information. federal prosecutors have got a lot of tools, 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 soldiers 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 lode of intelligence possibilities since he was involved all the way back to the kobar towers activities of al qaeda? >> i would defer to my pentagon colleagues. what we assessed from an intelligence perspective -- quite isn't it true, that a person connected with al qaeda a person connected with isil and other terrorists -- i will just say those two --that it captured they qualify as prisoners of war? >> if they meet this standard,

yes, sir. >> and mr. al libi would qualify. >> 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 pow's. >> they could be both, could they not?

>> conceivably. >> 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 councils office. generally, we do not consider them pow's. >> you also don't consider them as a difference between civilian prosecution and military detention and military commission trials either, in which case, you are dead wrong. if a person is captured, if they're taken for military trial, and as i understood your testimony, if they can be prosecuted in an article 3 civilian court, they will be. is that the policy we're now operating under? >> no, sir. what i was saying 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 is a preference, but we have a good ability to do that. >> you almost repeated what you said before, which was if we can prosecute them in 3 court, we will. >> under considerable success and a lot faster pace than military commissions. >> i have prosecuted in federal court. >> yes, i am aware of that sir. >> senator ayotte is correct. a person is brought in federal civilian court. they are immediately pointed a lawyer, or if they or allies or conspirators have money, they can hire their own lawyer, isn't that correct? >> that is correct. >> and before they can be asked

any questions, they are given their miranda rights and told not to answer questions. correct? >> once they are in that system, but we have done the interrogations with our i.c. and military professionals before we put them into that system. they are not mirandized. >> and if they have a lawyer the lawyer is going to tell them not to cooperate unless he tells them do for some reason. isn't that correct? that is 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

implicates 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 is deceased, sir. he died before trial. >> 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 maintained 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? just like german and japanese prisoners of war, american prisoners of war, they were not provided lawyers. >> if they were put into the process, they would have 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 during prosecution. >> 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 we 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 promptly taken to civilian court to be tried in civilian court rather 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 would think we want to try them in military court. >> 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 is correct. what i would say, sir, in terms of the efficacy of two systems because the military commission system is essentially new because of the new statutory framework, these cases are dragging on. whereas in thesy civilian 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 judge is taking everything as a first impressions. i am 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. the cases could probably move faster. 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 president's those issues would have been policy that they are a product of an improvident promise based on lack of understanding of the lack of reality of guantanamo. it is a perfectly humane and good place to keep people.

we set up procedures 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, who has not a duty to try to assist the government in obtaining intelligence. senator graham and others and ayotte and prosecutors see it as i do and are more knowledgeable 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 meeting is is adjourned. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

>> earlier today, a u.n. human rights official discussed isis and his discussed with the group after their recent killing of a jordanian pilot. here is more now. >> permit me to begin my remarks by speaking plainly as a jordanian and the u.n. human rights chief. i am filled, filled with anger and disgust at what they did in syria to my compatriot, moaz al-kasasbeh, to the two japanese captives, to the british and american captive, to the

yazidis, men, women children, in the form of burning, beheadings, raping, sometimes of children. the perpetrators who have committed these monstrous crimes, killing the defenseless, in defense of what, exactly? who would want to live in the so-called state, a state that crucifies, burns, and buries children alive? let us be clear. killing and torturing defenseless captives is a betrayal of the islamic tradition. it is forbidden in customary law. it is forbidden in international humanitarian law, the geneva conventions, and previously to

that, prior to that, the hague regulations. in human experience, it is forbidden, period. what virtue or courage is there in beheading someone defenseless, raping a young girl? does a person who calls themselves a fighter believe this is a definition of courage? these people are of annihilated conscious, are so far outside the human experience. the young adherents seeking to join them must know what they purport to join is not some adventure. it is the road to a destroyed, utterly criminal existence. if you are looking for some meaning in your life, do good deeds. that will be your salvation.

>> that was the part of an event earlier held at the georgetown university law center. you can see it later tonight at 9:10 p.m. at c-span. tomorrow, kevin barron discusses efforts to combat isis. then a look at the rise in measles cases and how the movement against vaccinations is contributing to the resurgence of the disease. plus your phone calls facebook comments, and tweets. live at 7:00 a.m. eastern on c-span. >> here are some of our programs this weekend. on "book tv," toby harnden on

efforts to stop the taliban advance in 2009. sunday at 10:00 the u.s. senate's torture report. on american history tv on c-span3 this month, interviews with former korean war pow's. charles ross, an army sergeant who was held as a pow from 1950 until 1953. then a look back at selma after 50 years. you can find our complete television schedule at c-span.org and let us know about the programs you are watching. call us, e-mail us, or send us a tweet at@cspan #comments.

>> we spoke earlier today with a reporter. >> it may have seemed like groundhog week in the senate. the senate had three attempts to bring a spending bill to before. we are joined by lauren fox. what is the holdup in the senate? >> the holdup is the fact that democrats are united against this piece of legislation, which rolls back that executive actions in 2014 and the president's cdoca action in 2012. republicans are not quite ready to budge. they want to continue to put

democrats on the record for not being against the president's executive action. that is where the holdup is. what we're looking for is whether or not republicans are ready to start the negotiating process here and whether or not democrats will accept anything less than a clean department of homeland security funding bill which at this point it looks like they are not willing to do. >> ahead of next week's action a piece said here is the gop's actions to end the stalemate. what is most likely at this point? >> republicans continue to bring this tilt of the floor, make democrats vote on it. we do not expect the votes to change. the other option is republicans could accept a clean department of homeland security will, could pass it. that would upset a lot of the republicans' rigthht flank

individuals who have said that they would like to make the president's actions the centerpiece of the dhs funding bill. another option that has been floated, senator collins introduced an amendment that would take out the controversial piece decrying the president's 2012 action rolling backolling back doca. democrats, even those who said in november when the president made his immigration actions that they did not approve the way he did it, they do not appear like they are willing to focus republicans. if they cannot get on to the bill, senate republicans want house republicans to send in a new kiss of legislation, and that puts john boehner back in a

precarious situation where he has to fight off his right flank and pass something else that the senate can pass. none of the options look good. it is going to be between mitch mcconnell and house speaker john boehner to work out. >> let's look at the house, because they will take up a measure that passed in the senate. the senate passed the keystone xl pipeline bill. they will take up that bill instead of going to conference. why that choice? >> it would reduce the amount of time. they want to get this on the president's desk as fast as possible. they want to have a conference region --that confrontation asap. >> you can read more on twitter. also read more online at nationaljounrnal.com. >> thank you.

>> republican alan nunnelee died earlier today at 56. he was not only first elected in 2010 and was a member of the appropriation committees. he underwent rain surgery last june and had been in and out of hospitals and rehabilitation centers the last year. congressman nunnelee was elected to a third term, but was too ill to travel to washington in january. he was sworn in a week later at a medical center in tupelo. there are now two vacant house seats. >> the political landscape has changed with the 114th congress. not only are there new repu