this hearing of the senate judiciary committee will come to order. theodore is often saying the degree of civilization in society can be judged by entering its prisons. for the last two decades, the most notorious prison in america has been guantanamo. we know it today and we knew it when the senate judiciary committee held its first hearing on closing the detention center at guantanamo in 2013. eight years and three administrations ago. i chaired that hearing as chairman of the subcommittee on constitutional civil rights and human rights. at the same, many senior military officials and lawmakers on both sides of the aisles agreed that it was far past time to close guantanamo bay. it saddens me this hearing today is even necessary. the story of guantanamo is a story of a nation that lost its way. it is a story of unspeakable abuse and indefinite detention without charge or trial. elements that are just counterintuitive when you consider our constitutional values. it's a story of justice that delayed and denied again and again and again. in the only for detainees, but also for the victims of 9/11 and their loved ones. before we get started, i'd like to share some of the stories with the following video. >> first, i'd like to end guantanamo. i'd like it to be over with. >> if it was up to me, i'd close guantanamo not tomorrow, but this afternoon. i'd close it. >> what is the moral superiority of the united states of america if we torture prisoners? >> according to president bush by his second term, the detention facility had become a propaganda tool for our enemies and a distraction for our allies. >> 42 retired military leaders the leadership of the armed services committee argued for the closure of this facility states there's near unanimous agreement for our nation's top military intelligence and law enforcement leaders. >> close guantanamo. >> close guantanamo. >> close guantanamo now. >> our enemies act without conscious. we must not. >> nearly 20 years after the attacks on 9/11, the long wait for justice continues. the cia has admitted to subjecting to repeated water bording, a technique that simulate drowning. >> he was sexually assaulted and nearly drown by his sbeer gators who threatened to rape his sister. >> in his statement, he also cast doubt on the effectiveness of the cia program. nothing the interrogators were doing was effective. whenever i was being tortured, i told them what i thought they wanted to hear. >> for the survivors and family members of the victims, it's a process that has taken far too long. >> justice delayed is justice denied. and now we're 20 years later with no justice. >> my sop gave his life is and it does not honor him that we violate our constitution in retaliation for what happened on september 11th. >> we have a constitution. we have a bill of rights. and it applies to all persons. >> the stories of torture that have come out of guantanamo and cia black sites around the world are shocking and shameful. one detainee who we saw in the video, recently testified before a jury of high-ranking, active duty u.s. military officials. during his testimony, he detained the torture he suffered at the hands of the united states government. including water bording and sexual abuse. when mr. khan's testimony concluded, 7 of the 8 jurors signed a handwritten letter recommending clemency now make no mistake. mr. khan should be held accountable for his actions, but as members of the jury wrote, and i quote, mr. khan has been held without the basic due process under the u.s. constitution. was subjected to abuse well beyond prued and enhanced interrogation techniques and instead being closer to torture performed by the most abusive regimes in modern history. this abuse was of no practical value in terms of intelligence or any other tangible benefit to u.s. interest. i might note, as i said earlier, 7 of 8 jurors wrote this handwritten letter to the court. all of them were career u.s. military officials. for nearly 20 years, 20 years, the detention facility at guantanamo has defied our constitutional values and the rule of law. today we live in a world in which the war in afghanistan, our nation's longest war, has finally come to a close, and yet guantanamo remains open. 39 detainees remain and more than two-thirds of them have never been charged with a crime. let that sink in. two-thirds have never been charged in 20 years. how can that possibly be justice? the other 12 detainees are in a commission system that has failed time and again. in sharp contrast to our criminal justice system, for instance, the case against alleged 9/11 coconspirators detained in guantanamo has never gone to trial more than 20 years after the attack. there's no end in sight for these military commissions. they will not provide justice or closure that the families of those who died on 9/11 deserve. at the same time since 9/11, the department of justice has successfully prosecuted a thousand individuals on terrorism-related charges and they have been securely detained by the federal bureau of prisons. we can and we must do better. president biden transferred his first detainee in july. but at that pace, one detainee every ten months, there will be dozens of detainees at guantanamo even if president biden is elected to a second term. to finally close this facility, we need to take a new approach. and a letter to president biden in april including eight members of the committee laying out the steps they should take to close the prison. getting this done will demand strong and effective leadership from the white house as well as the special envoy at the state department to negotiate transfer agreements for the detainees not charged with crimes. and it will demand swift and decisive action from the justice department which has yet to bring its legal positions in line with the president's goal of closing guantanamo. in july a letter to the attorney general urging him to revisit the justice department's defense of the government's authority to indefinitely hold detainees without charge or trial and without due process at guantanamo. i'm disappointed that the president and attorney general have yet to respond to my letters. and i'm disappointed the administration declined to send a witness to testify at today's hearing on how they are working to close guantanamo. i'm going to continue to press this administration to take action and to end this injustice. the delays in closing this facility are not cheap in terms of our reputation and in terms of our treasury. every day guantanamo mains open, damage our moral standing and credibility, weakens our national security and wastes tax pay er dollars. how much does guantanamo cost us? $540 million every year to keep it open. $540 million for 39 detainees. worse yet, as i mentioned earlier, guantanamo has failed to deliver justice to family who is deserve it the most. one of those family members is with us today. i want to thank mr. kelly. i want to thank her because she's here today making a sacrifice to appear and comes to us as a person who lost her younger brother bill in the 9/11 attack. thank you for your courage and your willingness to speak before the committee. families like yours deserve better. it's time for us to live up to the ideals our troops risked their lives to defend every day. it's time to set partisanship aside and work together to close the detention facility at guantanamo. i'll now turn to senator grassley for his opening remarks. >> thank you, mr. chairman. and thank you to all the witnesses that have come. we know that you have to put in a lot of extra time to get ready for these things and thank you for doing that. today we have 35 men in guantanamo bay that include tor mind of september 11th attack, khalid mohammed and the master mind of the attack on the u.s.s. cole. they are being prosecuted for their crimes in front of a military commission. in 2010 under president obama, the current national security division assistant attorney general matt olson led a review of the 240 detainees still in guantanamo at that particular time. only a small portion could be prosecuted due to legal and evidentiary challenges. some were set for transfer to other countries and some were so dangerous that the task force recommended continued detention. president biden has committed to closing guantanamo by the end of his term. he is not the first president to attempt to do so, but as the task force report explains, simply prosecuting or transferring a detainee is not an option in every case. the assistant attorney general ol sop is not here to say whether he has changed his conclusions about continuing law of war detention at guantanamo. there's no representative from the state department to say what countries are newly able to provide adequate security for transfer detainee. no one is here from the intelligence community, which has assessed that nearly 32% of the guantanamo detainees are believed to have rejoined their it war on the united states. the intelligence community isn't is here to say that the top tier leaders still at guantanamo are is safe for release. no one from the administration has come to defend it the president's plan to close guantanamo. and i'm not sure that there is a plan. setting a goal, a policy goal with no plan only invites disaster. over the summer, we watched a no plan approach unfold in afghanistan. to meet a deadline by the end of august, president biden ordered an american withdraw over warnings from his own senior advisers. i fear that his olympian to withdraw from guantanamo detention facility might be no different in making decisions on whether on matters of national security we must ask if a course of action makes americans more safe or less safe. are we protecting the american people. creating a potential safe haven for al qaeda and iis in afghanistan doesn't protect the american people. bringing terrorists to the united states doesn't protect the american people. releasing terrorist who is will only seek to attack us again doesn't protect the american people. fpz the safety of americans is not the only question, though it is a top priority. another question is that of accountability. i'd like to enter into the record a letter from terry straighta. she's a mother of three who lost her husband tom on 9/11. today she's an active member of the 9/11 teams united, which serves thousands of families and survivors of the 9/11 terrorist attack. she states that she and her family and all of us deserve justice for what happened. like many victim family members, she believes that means staying the course at fwaut moe. i'd like to read from her letter. quote, that the war in afghanistan has ended or that the new administration is in charge, none of that changes our need to prompt justice. none of that changes our need for an accounting based on the evidence collected over the years. evidence that hay not may not be available anywhere else. rather than lose the opportunity to obtain a justice for all those lost and all of us left behind, the military trial should continue to proceed under the guidelines of a military tribunal uninterrupted and as swiftly as possible. the evidence amassed needs to be heard for justice to be served and this dreadful chapter of our lives to close, end of quote. the victims of terrorism are not just those that we lost in 9/11 like terry's husband tom. over 4,000 service members have given their lives in a war on terror in iraq and afghanistan. the veterans of those wars that have given life and limb to protect americans from terrorists like those at guantanamo bay. i hope we will honor that sacrifice. i yield. >> thank you, senator grassley. >> mr. chairman? excuse me. are you going to call on others? >> i would be happy to defer to you. >> thank you very much. i care a great deal about this issue. i have visited guantanamo when i was chairman of intelligence. we released a report, which was a study of the detention and interrogation program. this report detailed the enhanced interrogation techniques used against guantanamo detainees at that time. it has changed since, but there are still real problems. in 2021, i introduced the bipartisan due process guarantee act, which would clarify that a generalized authorization for use of military force cannot by itself authorize detention without charge of a united states citizen or lawful permanent resident. i believed then and i believe now that this bill would help ensure the rule of law by preventing the indefinite military detention of u.s. persons without cause. senators white house, cruz, lee and collins are co-sponsors of the bill. i am really concerned about having an offshore detention facility, which is subject to a consequential day trip to get there and probably does not receive many visitors in a given year. in october of 2021, 7 of 8 u.s. military officers serving on mr. khan's military commission jury wrote a letter recommending that he receive clemency. mr. khan's abuse was of no practical value in terms of intelligence or any other tangible benefit to u.s. interests. instead, it is a stain on the moral fiber of america. the treatment of mr. khan in the hands of u.s. personnel should be a source of shame for the united states government. so i am very concerned that things like this have in the past happened. i know firsthand about the isolation of the facility. they can happen at any time. to me, it makes no sense to house our prisoners there whatsoever. one of the things that i hoped many years ago when i went there was that we would have the ability to close down that facility. so i hope that this it hearing may lead to that. thank you very much. >> thank you very much, senator feinstein. we're now going to turn to our panel of witnesses. today we welcome six witnesses. i'll introduce the majority witnesses and turn to the ranking member grassley to introduce the minority witnesses. we're pleased to be join by john baker, the chief defense council for the commission defense organization. general baker is going to be retiring at the end of this year after more than 32 years of service to our country. thank you very much, general, for caring for america that way. our first majority witness is major general michael leonard, who served on active duty in the marine corp. for 37 years. after 9/11 he served as the first joint task force commander at guantanamo, where he was tasked with preparing the base to receive the first detainees who arrived on january 11th, 2002. we will also hear from colleen kelly. the mother of three kids, a nurse practitioner, co-founder of 9/11 families for peaceful tomorrows. ms. kelly's brother lost his life in the north tower on september 11th, 2001. last but not least, katya jestin, is co-managing partner and former attorney for thy. she has represented khan, a ke taint knee at guantanamo for over a decade. ranking member grassley, would you like to introduce the minority witnesses? >> yeah, professor jami jaffer serve as a executive of the national security institute and is an assistant professor of law and director at the national security law and poicy program at the scalia law school. he previously served as senior adviser to foreign relations committee to the house intelligence committee, counsel to president bush and counsel to assistant attorney general for national security a at the u.s. department of justice. mr. charles stimson is a deputy director at the center for legal and judicial studies and manager of the national security law program at the heritage foundation. before joining the foundation in 2007, mr. stimson served as deputy assistant attorney for the detainee affairs. he a advised secretaries of defense rumsfeld and coordinated the pentagon's global detention policy operations including at guantanamo bay and iraq and afghanistan. mr. stimson has also served as a military prosecutor, defense counsel and recently served as deputy chief judge judiciary. he continues to serve with the ranking captain as commanding officer over the preliminary hearing unit. thank you both for coming. >> thank you, senator fwrast lee. after we swear in the witnesses, they will have five minutes for opening statements and then rounds of statements. try to remain within your allotted time. could all the witnesses please stand to be sworn in. kind enough to raise your right hand. do you affirm the testimony you're about to give will the truth, the whole truth and nothing but the truth, so help you god? let the record reflect that the witnesses of all answered in the affirmative. general baker, will you proceed with your opening statement please? >> i thank chairman durbin and the members of the committee for inviting me to testify today. i'd like to emphasize that ai am testifying as the solely chief defense counsel for the defense organization and not on behalf of any accused. moreover, the views i'm about to express do not reflect the views of the united states or any defense department agency other than haymy own. my views do reflect, however, 32 years of service of the united states marine corp. as a supply officer and as a judge advocate, including as a prosecutor and a military judge. as you noted, i retire the end of this year after six and a half years as the chief defense counsel for the military commissions. the title of this hearing is closing guantanamo, ending 20 years of injustice. because my authority is limited to oversight of the military commission's defense function and not on other detention operations, i will not address the issue of closing guantanamo. however, i can, and i will speak to ending 20 years of injustice. the only path to ending injustice in the military commissions for the defendants, for the country, and above all, for the victims is to bring these military commissions to as rapid a conclusion as possible. notice i don't say as just a conclusion as possible. it is too late in the process for the current military commissions to do justice for anyone. the best that could be hoped more than 20 years after the crimes were committed is to bring the chapter of american history to an end. that end can only come through resolutions negotiated in good faith by the parties. whatever the intentions, no one today can seriously argue the military commissions in guantanamo have been anything but a failed experiment. and there are almost 20 years of existence under four different president, the hill tear commissions have reduced one final conviction. to be sure, there have been seven other convictions, but three were overturned in their entirety and the other four have not completed the appeals process. the victims have waited 20 years in vain to see justice done. the 9/11 conspiracy was originally charged in 2008, almost 14 years ago and there's no date set for trial. the fact that the military commissions have been unable to bring the men charged with the worst criminal act in united states history to trial it 20 years after the fact has alone enough to indict the system as a failure. in fact, none of the active cases have a trial date set. these delays are a direct result of the government's decisions that have corrupted the process from the outset and made legitimate convictions in fair sentences virtually impossible. the source is the original sin, torture. the united states chose to secretly detain and tort thur the men it seeks to punish. this torture impacts and undermines every aspect of these prosecutions. more specifically, the government's fear that the truth will become public is what has been the most destructive to a fair process. and the government has effectively refused even to disavow its use of torture by adopting morally indefensible positions like arguing for the admissible of evidence and pretrial proceedings. as i discuss in my written testimony, there are a multitude of flag rant and potentially reversible legal violations infecting the commission's cases that i don't have time to discuss here. but it is on the basis of this record with these sorts of due process errors baked in that federal appeals courts will decide whether the commission's defendants received a fair trial and will their sentences including any death sentence can be allowed to stand. even if these proceedings were otherwise fair, with a manifestively have not been, or if the defendants had not been tort dhured cruelly by the united states, which they were, it is unconscionable that the government is gambling closure for the vick tims along with extraordinary resources and endless delays in an attempt to attain such fragile verdicts and death sentences. the more humane route for all parties is negotiating resolutions that give the victims at least justice and the closure they deserve now. i will conclude on a more optimistic note by assuring you that as long as the military commissions remain open, the military commissions defense organization's defense teams will continue to be the voice for justice at guantanamo bay. i thank you again for your invitation and for your time and attention. >> thank you, general. ms. kelly? >> thank you, good morning, chairman durbin, ranking member grassley, members of the committee. thank you for this opportunity to share my story. i'm a family nurse practitioner in new york and the mother of three grown children. my younger brother bill was killed in the north tower of the world trade center on september 11th. he was 30 years old and starting to really come into his own. he was a decent chef, bartender and ever hopeful duck hunter and a guy as comfortable in surfing shorts as in a business suit. bill worked at bloomberg trade book and his sisters would fight over who got to be bill's date at the annual holiday party. bill didn't work at the trade center. he happened to be there for a conference he repeatedly asked his boss for per higs to attend. bill's boss acquiesced so in a twist of fate at wrong time bill sent messages to his co-workers saying he was trapped. at first he was hopeful the fire department would save him. 343 firefighters lost their lives that day attempting to do just that. i tell you this to emphasize that each of the 2,977 people murdered on september 11th has a family, has co-workers and friends and for all of us in this country, there's been no justice or no accountability as yet. bill, my sisters and i grew up in a divided household of sorts. . my mom is a democrat and my dad is a republican. so i feel pretty comfortable sitting here today in another divided household. this teals like my family dinner table with a few extra friends. last week i asked my 84-year-old father for his thoughts about the 9/11 miitary commissions. his reply, this is not justice. after 9/11, i co-founded september 11th families for peaceful tomorrows. each of our 260 members lost a relative of 9/11. we believe the rule of law is a bedrock principle of our nation, and after 9/11, we expected our government to uphold the rule of law in seeking accountability, yet this has failed to happen. peaceful tomorrows obtained observer status in the commissions because we felt it was important to bear witness not only for our loed ones, but for the outside world. so i come to the following conclusions having bserved the commissions both firsthand at guantanamo and at family viewing sites. five men stand accused of planning and supporting the 9/11 attacks. a trial has not begun. instead, we have heard nine and a half years of argument in pretrial hearingings. instead of learning how and why the attacks that killed our family members were carried out, we have listened to seemingly endless litigation largely concerned with obtaining classified information about the defendants' torture. families have watched in frustration as one judge after another has been replaced. there's a new acting chief prosecutor, a soon to be new chief defense counsel, a new learned count counsel for one of the five defendants and numerous other changes. i have lost count of the number of convening authorities, but i know it's more than ten. in may of 2012, i sat with my dear friend watching the arrangement of the 9/11 accused. her brother died when he stayed behind to assist a disabled coworker on the 27th floor of the north tower. rita is now deceased. in 2017, i was on the plane to guantanamo with lee hanson, the only 9/11 family member to be deposed in the pretrial hearings. he lost his son, his daughter-in-law and his granddaughter on flight 175. mr. hanson is now deceased. in 2019 i was on a boat crossing guantanamo bay with alice, mother of hero mark binns ham. alice is now deceased. the point is that family members want a measure of accountability and justice before our deaths. today i'm asking this commission to acknowledge that the military commissions have failed and to help us gain some form of resolution through plea agreements in the 9/11 case. we understand that in exchange for guilty pleas, the government would drop the death penalty. what we would hope to finally get, however, is answers to our questions about 9/11, information we have been denied for two decades. some may not see this as justice. indeed, it is not the outcome our organization a advocated for, but it is a way forward. 20 years ago, while people watched the towers burn, i watched my brother being murdered one agonizing moment after another. my family still does not have any of my brother's remains, is so i'm asking this committee to deliver the next best thing. a resolution to the 9/11 cases that provides justice for the deaths of our family member, answers to our questions, kts blt for unlawful acts and a path to closing guantanamo. perhaps this collective national wound can finally begin to heal. thank you and i look forward to discussing further. >> thank you, ms. kelly. mr. stimson? >> mr. chairman, mr. ranking member and members of the committee, thank you for the opportunity to testify today. my name is charles stimson. i'm a senior legal fellow at the heritage foundation, but i'm testifying in my own pet half and not of the heritage foundation or department of defense or any other organization. although my views do reflect my 29 years in uniform as a defense counsel, prosecutor, and military judge as an assistant u.s. attorney, and my time at the pentagon as the head of detainee policy during the bush administration. it's a privilege to be testifying with each of the panelists here today. especially my friend john baker, who has given 32 years of distinguished service to this country and whose written testimony i would like to associate myself with i would like to make five quick points. first, the united states remains in a state of armed conflict. as such, we are entitled under domestic and international law to detain opposing enemy forces for the duration of the hostilities, including the terrorists at guantanamo bay. this is the first war in history, as we celebrate the 80th anniversary of the bombing of pearl harbor, where we let the enemy go during the war. and because of the hard work by the bush and obama administrations, we know who each of the 39 detainees are, the threat they pose and the risk they would need to accept if we decided to transfer anymore of them before the conflict ends. second, since at least 2005, the detention facility at guantanamo has been a safe, secure and humane detention facility and in compliance with the article 3. that's not my opinion. that's the opinion and findings of both the bush and obama administrations. in fact, after the deputy head of the organization for security and cooperation in europe visited guantanamo in 2006, he told a newspaper in belgium the following. quote, at the level of the detention facilities, it is a model prison where people are better treated than in belgium prisons, unquote. now there was, as is well documented, detainee mistreatment when the facility was first opened. that was inexcusable. it was unacceptable. and not consistent with our values as americans. but since then, detainee care and treatment has been improved and since president bush's second term and beyond, care and treatment, nutrition ask the like have far exceeded that required by law. third, the president has wide discretion as the commander-in-chief to decide where to detain opposing enemy forces, how long to detain them and whether and when to release or transfer them during an armed conflict. it's ironic on this 80th anniversary of the attacks of pearl harbor we're debating the location of where to keep enemies of the united states or whether we should even consider detaining them during an armed conflict. 21% of the can detainees are confirmed to have reengaged in terrorist activity. fourth, the debate over closing guantanamo has been overtly political. the year 2009 was the most opportune time for an administration to close guantanamo. president obama won the white house promising to close guantanamo. democrats held a 57-41 major any in the senate. similarly, the house of representatives, democrats enjoyed an advantage. if the president needed any legislation to close fwaut moe, which is debatable, or simply the political backing of the majorities of both houses of congress, the stars were aligned for him to do so. but he failed in large part because some members of congress failed to show the political courage of their own convictions as i detailed in my written testimony. finally, i conducted the first classified study of how to close guantanamo back in 2006, when i ran policy in the bush administration. i was prepared to help close the facility if ordered to do so and i would have supported its closure in a responsible way. i spoke to the policy task force when they took office early on and advised them how to close it responsibly. as i detailed in my written remarks, to close guantanamo in a responsible manner, an administration must focus on the legal, political and diplomatic challenges as i detailed this my testimony and then spend the political capital and show courage to get it done. thank you, and i look forward to your questions. >> thank you very much, mr. stimson. major general michael leonard. >> chairman durbin, ranking member grassley, members of the committee, thank you for the opportunity to appear before you. the goal of terrorists is to change our behavior and headache us live in fear. by that metric, they have accomplished their mission. each of you will recall those terrible days after 9/11, some of you were here. others among you wore the uniform of your nation's military as i did. all of us felt an incredible responsibility to the american people we had sworn to protect. constituents demanded answers and action. i was a newly apointsed big deer general assigned a force of 8,000 marines and sailors when the world changed. as we began to take captives in afghanistan, the question about what to do with them became imperative. the bush administration settled on guantanamo. i had previously commanded a force charged with securing 18,000 cuban and haitian high grants at guantanamo. because of this background, the urgency of the situation and the marine corp.'s ability to deploy rapidly, i was chosen to lead a joint task force to hold the first detainees. we received our deployment order on friday, january 4th, 2002. we were given 96 hours to deploy to cuba and build the first 100 cells. my mission to set up that gout guantanamo and run it until the army could take over lasted 100 days. the speed of guantanamo's creation and the urgency to gain information had bad consequences. the legal ambiguities that make it an atactive choice sets up extraordinary challenges for soldier, sailors, airmen and marines who must execute these policies. we do not shed our oath to the constitution or responsibility to adhere to u.s. laws and the international norms when we deploy. the decision to subject detainees to enhanced interrogation techniques and avoid application of the conventions except when it suited us caused national support and aided the cause of our enemies. speaking plainly, we are here where we are today buzz of those misguided policy decisions to cast aside our values and the rule of law. i am not an attorney, but even i know when you forego generations of legal fought and precedent, bad things happen. the vast majority of the 780 men sent to guantanamo never should have been there. among the 39 prisoners who remain, there are some who need to pay the price for their crimes. but what we have now is not justice. there's no justice for the detainees, but more importantly, the relatives of the victims of 9/11 and of other terror attacks deserve justice and they deserve closure and they aren't getting it. who gains by keeping guantanamo open? not america. those who would harm us are the ones who gain. they point exist tense of guantanamo as proof america is not a nation of laws. they use guantanamo as a rekulting tool. they it don't want us to close guantanamo. some might be thinking my constituents don't ever ask me about gaut guantanamo and you'd be correct. most have forgotten. but hear me when i tell you my enemies have not. closing guantanamo responsibly restores the reputation of america, ensures accountability for those who committed crimes and provides closure for the families of those they have harmed. the issue isn't whether to close guantanamo. but how. so how do we close it? here are some suggestions. first, make someone in the white house currently responsible for closure and give them a period of time to make it happen. i was given 96 days to close it seems reasonable. whoever gets this job needs to have the authority to direct the necessary elements of our government to make it happen. second, there also needs to be a senior officer official at the state department in charge of negotiating transport. more than two-thirds of the remaining detainees, 27 of them have not been charged with any crime. these detainees must be transferred either to their country of origin or a willing host nation. 13 have already been approved by transfer by our intelligence agencies. continuing to hold these cost taxpayer $13 million annually per detainee. it ties up troops that could be used elsewhere and makes a mockery of our system of justice. let's transfer them without further delay. for the remaining 12 who have been charged, it's time we recognize that it the commissions have failed. i have little sthie for these men and a great deal of em a pa thi for their victims, but the military commissions have failed while our federal courts have been remarkably successful holding our enemies responsible and securing significant sentences for terrorists. the victims of these men deserve justice. they deserve closure. they do not find it through military commissions, even though some good people have tried to make them work. at this point, we must bring these cases to close through negotiated plea agreements, even if we want to see resolution. it may require taking the death penalty off the table. if that's the case, so be it. the death penalty serves no useful purpose other than providing martyrs for our enemies. i'm not a lawyer, but plea deals could be reached within the commissions themselves or by video in federal court. the parties could make arrangements for where they will serve out their sentence. some are going to worry about detainees who might try to harm us. the question of risk is real and i acknowledge it. my life as a pleern involved managing risk, but in my view, the damage caused by continuing to ignore the rule of law and gifting a recruitment tul to enemies far outweighs the risk that some of these might one day reengage in terrorism. it's hard to overstate how damaging the continued existence of guantanamo has been to our national security and the fundamental values we stand for as a nation. who we are cannot be separated from what we do. it's past time to close guantanamo and reaffirm who we are as a nation. thank you. >> thank you, general. professor? >> thank you, chairman durbin and members of the committee. i appreciate the opportunity to testify today and discuss the detention of terrorists at guantanamo bay and the current threat facing our nation from terrorists. members of the committee, the fact of the matter is the war on terror is not over. the director of the fbi, the director of the national counterterrorism center, the director of national intelligence, and the commander of u.s. have all made that abundantly clear. they continue today to plot terrorist attacks both here in the united states as well as abroad. it is in that context that we are discussing the question of what to do about the detainees at guantanamo. we know today that isis and al qaeda continue to aspire to conduct major terrorist attacks here in the homeland. to be sure, their capacity of such attacks has been reduced, including over the last two years by the counterterrorism pressure that's been brought to bear by this administration and the prior administration's before it. that being said, new ungoverned spaces continue to rise in places like afghanistan where our withdrawal has allowed the taliban to return to power, terrorists to remain members of the government and isis to continue to plot terrorist attacks, including a deadly attack killing 13 american soldiers at the airport earlier this year. so we know that our enemies continue to target us. we know that the war on terror continues. the question then is what do we do about the detainees? we know these detainees currently remain at guantanamo bay represent the most hard core, the most committed of the terrorists we have captured in this conflict. to be sure, these individuals have aged with time. they have been out of the fight. some for two decades. that doesn't change the fact that they represent some of the most committed terrorists out there. and this takes place in the context of the fact that we know that individual terrorists and their release and their return to the fight can have a huge impact on the operations of terrorist networks. one need only look at al qaeda, which began as a small group that came together under the leadership and inspiration of khan, both americans, who took to the fight there in yemen and made al qaeda one of the most threatening terrorist groups to americans here at home. the number of attacks that they conducted both in yemen and threatened against the united states in the aftermath of just two americans joining the fight was significant. and so when we consider what toods with these detainees, continue to detain them, transfer them, plead them out, the question must become what happens if they do return to the battlefield. this is not a theoretical threat. we know because of what the officer of national intelligence told us this over 800 detainees that have been released from gaut moe bay, one-third have returned to the fight or suspected to return to the fight. so these are not theoretical questions. these are real questions. to be sure, the situation at guantanamo bay is not ideal. it's not been ideal since the beginning, and the things that have taken place during the capture and detention of terrorist suspects have been a challenge to our nation and its character. at the same time, when we consider what to do with the remaining 39 individuals, we must ensure that the american people are fully and a adequately protected. so if we think about bringing these detainees in it the united states, we must ask yourselves. what rights will they gain? what opportunities will they have that they don't have today? we know at guantanamo bay, the supreme court said they have the right to habhouse corpus, but they have no other rights they are foreign nationals held during an ongoing conflict if we bring them to the united states, there's the possibility they will receive cig countily more rights and more opportunities under our own laws. and as a result, as we think about these very hard and difficult questions, we have to consider both the individuals at guantanamo bay, their status and the continued ongoing war on terror. thank you for the opportunity to present my views. i lock forward to your questions and ideas. >> thank you very much. >> chairman durbin, ranking member grassley, members of the committee, thank you very much for the opportunity to address you here today. my name is katya and i'm a lawyer in new york. i have spent my career practicing criminal law both on the defense side and as a federal prosecutor. through my experiences as a prosecutor, i developed a deep respect for the rule of law. and there can be no serious dispute in 2021 that guantanamo is a failure. it harms our national security, undermines the rule of law, and weakens our international standing. as the title of today's hearing correctly states, guantanamo has produced 20 years of injustice. the military commission system is a glaring example of that injustice. the system has failed in virtually every respect. it's failed the victims of terrorism ask their families. it's been 20 years since 9/11 and this chapter needs to be closed. i have spent months in the detention facility in guantanamo. for over ten years, i have represented a man who committed serious crimes. he also spent years in cia black sites and suffered unspeakable acts of violence and abuse. torture. but notwithstanding, the very un-american treatment he received a at the hands of u.s. personnel, he determined to resolve his case in the military commissions. he took responsibility for his crimes, and he pled guilty. he became a cooperator and he's been assisting the united states for decades. and given his cooperation, he is to complete his commission sentence in february of 2022, and will need to be transferred then from guantanamo to a place in and in a manner consistent with the way the government treats cooperators this important cases. but his case charts a course here about how the government can and should resolve the remaining military commissions cases, which is a critical part of fulfilling the government's policy objective of closing guantanamo. the remaining contested cases currently pending in the commission system are going nowhere. let's be honest. these cases are as far from a trial now as they were when they began, most many years ago. put proceedings and the military commissions as opposed to negotiated guilty pleas are doomed to fail for at least two reasons. first, the commissions lack legal clarity. they are perpetually mired in complex legal issues that scuttle any effort to conduct trials of pace. second, there is the issue of torture and the cloak of secrecy surrounding it that the executive branch still fights to maintain. torture infects almost every aspect of a the commission's proceeding. it is the third rail in the system. the quagmire of the commission is the victims of the commission like my colleague colleen. the victims and make no mistake. one objective. keep the detainees under wraps so they cannot explain what happened to them in cia detention. that appears to be the goal of the military commissions, not truth, no justice, not accountability. they exist merely to keep the dark chapters of our recent history in the shadows and continuing to litigate the contested cases is the legal equivalent of a -- what about the 27 men who have not been charged. foreseeable end. democratic principles and the rule of law. in closing i want to remember the words of senator mccain in 2008 when he asked a question that i ask each of you today. what makes this country great, what makes me proud to be an american is what we aspire to be. guantanamo falls far short of those aspirations. thank you. >> thank you so much for your testimony. i'll begin the questioning. let me say at the outset, general baker and general leonard and to all the members of the panel this is some of the most powerful testimony i've heard. the credibility that general baker and retired general leonard bring to this issue really makes it even more powerful and forceful. both of you have enjoyed responsibilities commanding our men and women in uniform and also accepting assignments. as you mentioned, general leonard, 96 hours to set up something like a guantanamo detention facility is an incredible assignment. but in reading your testimony, particularly general baker, it's very clear to me what's happened. you say at one point the military commissions have been able to bring the men charged with the worst criminal act in the united states history to trial 20 years after the fact and 14 years after they were first charged. this alone is enough to prove if the system has failed. it seems to me that we put these prisoners, these detainees in a black hole on an island which we could claim is not part of the territory of the united states and decided we would treat them in some kind of unusual legal manner with these military commissions as testimony has made clear that experiment failed and you said as much, general baker, in your opening statement. general leonard has suggested there come a point where the best we could hope for to finally put an end to this chapter is some sort of plea negotiation in terms of the outcome and where these prisoners are held, if they're held from this point forward. general baker, would you like to comment on that suggestion? >> yes, sir. i would agree that the plea negotiations resolution is the only way out. i became the chief defense counsel in 2015. we're further from trial today than we were when i started. this legal quagmire, i don't see a way out. the steps clearly are not working. >> i'd like to ask you general leonard, is any type of resolution for these detainees being held going to give aid and comfort to the enemy and put america at risk? >> i think what's putting america at risk is the status quo, is continuing down this road. >> general leonard? >> senator durbin, i agree with general baker. i'd also add the point that with respect to our minority witnesses who i thought did a remarkable job, you know, i held 13 separate commands in 37 years. with command comes a remarkable power and authority. one of the questions i would always ask myself is not can we do something, but should we do something. i think in this particular case we have a responsibility here today to ask ourselves how history is going to judge the united states in the long-term. in my view, it is time to close guantanamo, sir. >> it was an extraordinary thing when seven of the eight jurors in your client's case created this handwritten letter, which we have a copy of. can you explain the circumstances behind that? >> thank you, senator. yes. at mr. kahn's sentencing hearing that occurred this year end of october, mr. kahn through agreement with the government was given the opportunity to speak for about two hours about what happened to him while he was in cia custody. he did so and it describes in a fair amount of detail what he was subjected to while on the black site. at the end of the proceedings, the military panel of jurors was given the opportunity to not only render a decision on his sentencing but to suggest clemency should they wish to do so. and they made that decision to do so and supplied that written clemency letter that you quoted from at the beginning of these proceedings at mr. kahn's sentencing. it was remarkable to us, senator, given their position in the military and given the facts they had had an opportunity to hear everything at the sentencing hearing, including the entire stipulation of facts to which mr. kahn plead guilty to and took responsibility for. the clemency letter was delivered in the context of full information about the seriousness of his crimes, his contrition, his guilty plea and then what happened to him while he was in the black site. >> ms. kelly, i'm going to remember for a long time as you recounted all of the survivors' families who passed away waiting for a moment of resolution or some sort of explanation for what happened to their loved one. it is, i think, stark testimony as to why we final have to bring this to a close. senator grassley. >> first, professor jaffrie, in light of the poorly planned withdrawal from afghanistan, administration officials have testified that the strength in al qaeda or isis could launch attacks against us in afghanistan as soon as six months. it's particularly important to ensure that the worst of the worst at gitmo do not rejoin those efforts. the office of the director of national intelligence has reported that nearly a third of gitmo detainees reengaged in terrorism. at least a dozen have launched attacks against the united states or u.s. forces in afghanistan, killing at least a half a dozen americans. what does the effect of afghan falling to the taliban and creating a safe haven in afghan on the dangers of releasing these detainees? >> thank you, ranking member grassley. the situation in afghanistan and our precipitous withdrawal, the detriment of that cannot be understated. the taliban who hosted osama bin laden on the day of the 9/11 attacks have now returned to power. within their ranks, the haqqani network is the deputy head of the taliban. they have refused to comply with all but one of the conditions of the doha agreement reached in order to facilitate the withdrawal of the united states from afghanistan, including the conditional requirement to renounce and reject al qaeda. they have not done so. isis khorasan are responsible for the death of 13 americans at hamid karzai airport. they see this ungoverned space as an opportunity to consolidate their efforts and fight against the west. they seek to conduct attacks against the united states, in europe and against americans around the globe. the terror threat today is worse specifically because we withdrew from afghanistan in the way and the manner which we did. >> to mr. simpson, the final report of obama's review task force which was completed under the direction of assistant attorney general matt olson notes there are many challenges to prosecutoring gitmo detainees in article three courts, including statue of limitation, lack of jurisdiction. of the 240 cases the task force reviewed, only 36 were deemed suitable to investigate further for charging and only 12 were recommended for charging in either our court system or the military commissions. for the remaining gitmo detainees is prosecution an option? >> thank you for your question. the answer really is, it's hard to tell from where i sit today. ms. justin and i have had the privilege of being federal prosecutors. i'm clearly a fan of the use of federal courts in appropriate cases. to your question, matt olson and his team scrubbed the evidence available in the gitmo detainee files to assess whether, one, they were -- detainees. two, whether the appropriate -- should be done in federal court or commissions. the problem is these detainees were not captured in a place like in a city where there was crime scene tape and preservation of evidence and the rest of it. so it's likely the evidence may not even exist to be able to prove the case beyond a reasonable doubt in federal district court. although they may be detainees, i think the chances of their being able to be prosecuted in federal district court are low. >> professor, what are some of the risks of bringing gitmo detainees to the united states? what could happen to their immigration status? is release in the united states even a possibility? again foreign nationals captured in an ongoing conflict. they may get additional rights. . we bring them to trial in federal court, what about the fourth amendment, what about chain of custody? what about the rules of evidence? there are dozens of questions. exonerated. what will happen to them? they are in the u.s.'s custody but aren't entitled to stay in the united states. in gitmo they remain in immigration detention for a long period. then we have the potential for the supreme court to suggest they may have to be released into the united states. the odds of that, to be sure, are quite low. that being said, they are not zero. >> senator grassley. >> thank you, mr. chairman. i've thought a lot about guantanamo from the time i visited. i've served in my past on boards that sentenced women convicted of felonies in the state of california. i did that for more than five years and sentenced a lot of people. i know prisons. when i saw guantanamo and realized its isolation and came on the small boat to where it was, i began to understand that this was a facility that is really almost designated -- i have no proof of abuse. i know the statistics. but for abuse. and does not really belong in the modern day criminal justice system. i think the detention at guantanamo was not thought through. it's been subject to major legal challenges and it is ultimately served as a rallying cry and recruitment tool for our adversaries. nearly 15 years ago i introduced legislation calls for its closure and it went nowhere. and i watched it since then. the annual cost is $540 million. it's $13 million per detainee each year and there are 39 detainees remaining. that's what this is all about today. for this modern body to support an isolated criminal justice system, in quotes, is just plain wrong. and i would hope that the votes are here finally to change it. i just wanted to say that, because this is an aberration on the united states of america. it's not what we represent. we don't support this kind of isolation in criminal justice. and i'm grateful for the people that had the courage to come here and in many different ways say the same thing. that's all my comment. thank you. >> senator feinstein. senator graham. >> thank you, mr. chairman. let me set the stage as i see it. 20 years after 9/11 the taliban are back in charge. does everybody agree with that on the panel? the taliban now are in charge of afghanistan. everybody agrees. five of the people in the taliban government are former gitmo detainees. the deputy minister of defense, the acting minister of borders and tribal affairs, the acting intelligence director, the acting minister of information and culture, the new governor of the southeastern province are all former gitmo detainees and we're talking about releasing people. 229 of the 729 people released from gitmo have gone back to the fight and we're talking about releasing people. this is nuts. one thing i can say about the 39 that are at gitmo, not one of them has attacked the united states. and if i have my way, none of them ever will. bringing them to justice, i understand that very, very much. but here's what i have been fighting for 20 years now almost. i don't want anybody to be tortured by american military personnel or government officials or contractors because that makes the war harder to win. that's why senator mccain and my colleagues, we fought hard to hold those accountable who lost their way. having said that, i've never accepted the false choice of try them or release them. we're at war, general baker. this is not a criminal enterprise. this is a war and we're applying the law of war. is that correct? >> sir, you know, my sphere of influences is overseeing the military defense function. policy decisions are decisions by -- >> well, let me ask you this. as a military lawyer, does the united states have the ability to hold a member of the enemy forces as an enemy combatant under the laws of war? >> in certain circumstances, yes, sir. that's not what we're talking about here today. >> everybody at gitmo went through a combat status review tribunal hearing, is that correct? >> yes, sir, but what we're talking about -- >> no. what we are talking about here is these people have been determined by a process consistent with a supreme court determination that they are, in fact, part of the enemy force. there was a hearing held for all 39, combat status review tribunal under the law of war required by the supreme court and everybody was found to be a part of the enemy force. is that true or not, general baker? >> what we're talking about today, sir -- >> are the people at gitmo, have they gone through a process and been determined to be part of the enemy force. >> not a process that is fair. >> that's your opinion. you're a defense guy and i admire the hell out of you. you're doing the american people a great service. we're here as politician makers to make a decision about what we should do. i think it's absurd to criminalize a war. you can hold somebody until they die as an enemy combatant if it's unsafe to release them if the war is not over. does anybody doubt we have the ability today to kill somebody who's part of al qaeda if they're up to no good? mr. simpson, can we kill them? >> the reason we've never done more that way is because it's stupid. we're not fighting a crime, we're fighting a war. i don't want to torture anybody. i want to give them due process consistent with war. if i want to hold them as long as it takes to keep them safe where we believe they're no longer a threat. here's the problem. i don't care where you house them. you can house them in illinois as long as you don't let them go. all of you are great americans. thank you for giving your opinions and your counsel to the committee. i find it stunning that not one member of the administration. >> the work of chairman rockefeller and chairman feinstein did on the intelligence committee. [indiscernible] >> our ability to resolve the remaining detainees. this was always a problem. [indiscernible] >> sir, i agree with everything that general leonard just said. >> it was years of negotiation with the government this year preceding his sentencing to enable him to give an unsworn statement to describe what he was subjected to at the hands of the cia. for him that was very important. and for the country it's important to have the measure of accountability that can bring about. >> mr. chairman, i'm over my time but i want to thank you for holding this hearing and the attention you're giving to the department of justice. a lot of this began, as you know, with completely inappropriate opinions offered by the legal counsel. how do we know they're inappropriate? because once they were public, the department of justice itself under the same administration disavowed them. that was in some respects the original sin. i don't think we've solved the problems that keep that sin from repeating itself. thank you for your leadership in making sure the department of justice doesn't get abused again. >> i don't know if i'll be here eight years from now. maybe someone else can take on that responsibility. eight years ago we raised this question. had we closed guantanamo at that point, i think we'd be better off as a nation. >> senator cornyn. >> thank you mr. chairman. obviously if this were easy four presidents, 20 years, we would have figured this out. what was unprecedented was a terrorist attack that occurred on our soil that took the lives of 3,000 americans and the american people demanded a response. and the american people demanded that we stop future terrorist attacks. but i think part of the confusion here is we still have people arguing that this should be subject to the usual rules in a criminal trial. and for obvious reasons, that's not possible for many of them. don't take my word for it, it's what the obama commission concluded in 2010. but just mr. jeffrey you've alluded to this, but can you talk about we all agree that the rule of law should apply here, but can you talk about why the rule of law applies differently to a noncitizen captured in the battlefield during a war. >> absolutely. thank you, senator cornyn. the supreme court has held that in an ongoing conflict, the united states can hold enemy combatants for the duration of the conflict there are debates today about what the battles in afghanistan having come to an end with our precipitous withdrawal, does that change things. the answer clearly is no. joint chiefs chairman mark milley and sent come commander general mckenzie both testified here in the senate less than two months ago that, in fact, the war on terror continues. our enemies believe the war on terror continues. they continue to plot attacks both here in the united states and against us and our allies around the globe. so the war continues and the ability to detain continues. as senator graham pointed out, if we have the ability to kill an enemy on the battlefield, is it not more humane to capture them and detain them. how can it be we can kill an enemy but not detain them? it doesn't make sense to me. >> that's essentially the ruling of the united states supreme court and other cases, is that correct? >> that is correct. plus justice thomas's view, yes, sir. >> what i'm trying to understand is what is being asked for here when people say they want to close guantanamo in terms of the outcome for the families who lost loved ones on 9/11. i heard mr. stinson you and mr. jeffer talk about the difficulties of prosecutoring these individuals in a court of law, assuming you could do that even though clearly the law of war allows indefinite detention for the duration of hostilities. but it seems to me that they're insurmountable problems with trying to try these detainees in an article three court. can you explain, mr. stinson, your thinking about that? and also would simply an equivalent in letting these detainees go and avoid any sort of consequences for their terrorist acts, would that be justice, in your opinion? >> thank you for you question. the argument about closing guantanamo among the moral arguments is that if you change the zip code and move them to the united states or elsewhere, it eliminates the original sin, quote, unquote. as senator graham pointed out that if you don't deal legislatively with the issue of whether they can be detained and nothing more in the united states, you really don't change anything but the zip code. it's clear our enemy is on the march. they're clearly in power in afghanistan. if you change the zip code and change nothing more and prosecute those that you can in court, then our enemy will simply turn their ire in proxy to the new zip code. to close guantanamo in a responsible way, you have to deal with the fact that we are at war. the law of war detention is the guiding principle. if you can prosecute some that can't be prosecuted, do that too. we really haven't gotten the best security assurances from some of the countries that we sent detainees to. that's the conundrum. >> thank you. >> senator blumenthal? >> thank you for holding this hearing i want to thank you for being here today and sharing your powerful testimony about your personal experience and about the 9/11 family's quest for justice. i've worked with a number of the 9/11 families. you made reference to one of them, lee hanson in your testimony, who was from connecticut. connecticut was affected because we're close to new york and many of our family members were there, as was your brother bill. and i've been so deeply moved and impressed by the efforts of 9/11 families to seek the truth about what happened on that day to see answers to the questions that you've raised. a number of the families have sued saudi arabia, as you know, the congress in a very bipartisan way, senator cornyn and i have helped efforts to en able those families to seek their justice. you've done it very heroically through peaceful tomorrow. i was struck by the reference in your testimony to the concealment, in effect, through the state secrets privilege, through classification of information that really belongs in the public realm. this point has been a continuing one that i tried to make. i wonder if you could elaborate on what kind of answers you're seeking and how the overclassification and maybe the unnecessary and sometimes irresponsible use of state secrets privilege has contributed to the concealment that has really aggravated the injustice to your family. >> sure. thank you for the question. i want to start by saying that the common ground that i've been hearing so far and i've been listening very carefully is adherence to the rule of law. the common ground i've been hearing about rule of law is that the military commissions, the rules for military commissions do allow for pretrial agreements. so one way to get to many of the answers that we're seeking and one way to get to information would be a pretrial agreement not where people are released, but a stipulation of facts to actually what occurred and perhaps the ability of family members to ask questions. could that be written into a pretrial agreement so we could have our questions answered? the defendants would have to admit to what exactly what happened and what their role was in the attacks. i think there's a lot of large complex questions before this committee, but i also think there's a simple solution for the 9/11 case and that would be pretrial agreements, understanding secrets that are long hidden and gaining information. >> i think that point is so powerful, because any of us who have been involved in trials or litigation or law enforcement know that one of the purposes of a trial, of any legal proceeding is to get to the truth. >> the truth. >> to get to the truth of what happened in any kind of action that may give rise to legal responsibilities. and what you're asking for is really one of the core functions of the rule of law. >> there would be some resolution for my mother and father and children and some resolution for this country, which i really believe we so desperately need. >> because you spoke to your dad before you came here. >> yeah. my family is very exemplar of what this countries is about. we have different opinions and viewpoints and some are quite loud but this is who we are, this is who this country is. what we did agree on is there's a better way to get to some sense of resolution and it's gone on too long. we all agree on that as well. >> we're divided too. but i wish we were a little more like your family rather than what we sometimes are. >> i won the family lotto. i come from the greatest family in the world. >> mr. tillis. >> thank you for your service. what crimes did mr. kahn plead guilty to? >> thank you, senator. mr. kahn plead guilty to several war crimes, including murder, spying, conspiracy. >> mr. symptom and mr. jaffer i was the person in the senate armed services committee that asked general milley and general mckenzie if the war was over and they both gave a categorical no as an answer. we also assessed that with the precipitous withdrawal from afghanistan that the united states is likely to suffer an attack from isis k over the next 6 to 12 months either on the homeland or against u.s. assets world wide. there's a real serious threat to future detainees. >> you were tasked with looking at the possible closure of guantanamo bay. what was the ultimate conclusion? >> thank you for the question, senator tillis. i categorized it in my written testimony and it fell into four categories. the four categories are legal, logistical, political and diplomatic. each of the four you have to work on simultaneously. now with 39 people one plane load would do it if you were to take them to one place. the legal part you've heard several of my colleagues talk about some of the conundrums. political is tough. the table was set back in the obama administration to get it done. this body has put forth into law certain notification and other requirements before you transfer someone off the island. those would have to be adhered to. congress plays an important part and would have to join in. >> when we're talking about a responsible transfer to another jurisdiction, we're not being particularly successful with doing that. isn't that kind of a global acknowle acknowledgment? i know on the one hand we say we're suffering reputational damage for having gitmo open, but the fact that we can't find other jurisdictions to responsibly relocate them, almost seems like a de facto approval of the worst option of all the other options we've try to pursue. am i wrong about that? >> i think you're right in we can't get the right security assurances. a third of the detainees at guantanamo bay are designated for transfer but we can't get countries to take them and give them assurances they'll keep an eye on them. given that 30% have returned to the fight -- >> five are actually in the taliban administration. >> exactly right. >> mr. kahn took responsibility for his actions and he's been cooperating for over a decade and has done everything to assist in prosecutions. >> i think that's a fair point. the fact of the matter is he's responsible for murder and plead to those crimes. we're talking about people who have done grave damage to human life. we can't forgot that's the nature of the people who are down there. >> thank you, mr. chairman. i thank all of the witnesses and especially i would like to thank ms. kelley for your years of commitment to obtaining justice for your family and that of the other 9/11 families. i look at the numbers and it's not that 14 of them continue to be held without charge. we haven't even managed to charge these people in decades. so we're left with 12 who are currently in the military commission system, which witnesses have testified does not work. of the 39 who remain at guantanamo, 27 should be transferred. 780 men were detained since january 11th. 532 were released by president bush. 197 were released during the obama administration. we have 12 people who are in the commission system, costing the american taxpayers almost $14 million per detainee per year compared to about 78,000 per year for prisoners in a supermax prison in the united states. i don't see how you can escape the conclusion that there has to be a better way. we talk about responsibly closing guantanamo. one of the suggestions made by ms. kelley and others that we pursue plea agreements. i have a question for general breaker. would a plea agreement be a feasible alternative for the 12 detainees who are in the commission system? >> thank you for your question i want to preface my answer with i don't represent any of the 12 that are charged. >> could you talk about the time that would be needed to reach a possible plea agreement versus the time needed to complete the military commission proceedings? >> that's great question. we don't know how long it's going to take to finish these questions. a lot of focus is on when is the trial going to be over. that's just stage one. there's an appellate process too. you can add 15-20 years. ms. justin is probably better positioned to answer how quickly you can reach a plea agreement because she successfully did so ten years ago. >> would you like to add to this conversation, ms. justin? >> thank you, senator. it's possible to be accomplished if there's a will to do it. one thing that we've heard a lot about during this hearing is federal court prosecution of people charged with terrorism crimes. i'd like to note for the record it is a very effective system. it is a system that is that is in conformance with the constitution and follows the rule of law. if there is a will to accomplish this, i would recommend they involve doj and get prosecutors involved to negotiate these dispositions because i think it will move more quickly. the bottom line is if there is a will, this can be done and can be done quickly but there has to be the will. >> what you're describing is the better way. by the way, is there anything that currently prohibits the government or defense counsel from reaching a negotiated plea agreement? general baker? >> absolutely not. >> nothing? >> nothing. i think it is time for us to get our heads out of the sand regarding guantanamo and close guantanamo. >> i understand two of the republican senators are on their way. does anybody want to volunteer what on their way means? have they all voted? i ask the panel to sit at ease for a moment. we'll see if we can catch up with our colleagues. just in time from the state of missouri senator hawley. >> thank you, mr. chairman. thanks to the witnesses for being here. let me just start, if i could, with a request for mr. stinson or mr. jaffer. i was re-reading some of the supreme court's cases regarding guantanamo bay back to the 2007 in that case in particular the court noted that guantanamo bay has a unique status, jurisdiction that the status in american law. the court also noted when you move aliens, enemy alien combatants in this case to american soil, to territory that is indisputably part of the sovereign territory of the united states, that constitutional rights increase and there's a long line of cases dealing with this. can i just ask you for your view, one of the consequences of closing guantanamo bay and moving enemy combatants to the united states, i realize the supreme court found that the prisoners' presence in gitmo does confer certain rights to them in the habeas context. if you move them to the united states, it's not a halfway u.s. territory, halfway not. if you move them to this country, what would the effect be on their constitutional rights particularly if you involve them in traditional court proceedings in the criminal justice system that is not in the enemy combatant system? >> that's a great question. we don't know the exact answer. what we do know is that there's likely to be significantly more rights that the detainees would've if they were brought here even under law of war detention than being held at guantanamo bay because of the unique status of guantanamo bay even given that limited right to habeas. it's likely likely if the u.s. government were to bring the detainees into the united states, they're going to get a certain number of rights they wouldn't have otherwise had at guantanamo bay. the question then is what scope and how broad. does the fifth amendment attach, what about the evidence brought at trial. a lot of we was gathered on the -- evidence was gathered on the battlefield. >> mr. stinson? >> the only thing i would add is you recall since you waded through the decision handed down in 2008 was the whole are discussion by justice kennedy on dejury versus de facto decision. there's no doubt once they're here on terra firma that anyone will challenge all sorts of aspects to their detention, including probably bringing tort suits to people in their personal capacity. i don't think anyone wants to see those types of things happen. unless and until, for example, this body and the body across the hill came together and passed legislation to the rights they would have if they were brought to the united states and reaffirm they're in a law of war detention and that's the applicable law only. i think it's really an open question as to whether the rights would accrue to them. >> just to put a fine point on that, unless congress acted there would be at the very least an argument to be made that were detainees moved to united states soil we could be looking at all kinds of new legal rights and proceedings. your position about tort suits they could bring. we should be looking at a whole different set of legal rights and outcomes that are currently not even imaginable or considerable in gitmo. let me ask you this, professor jaffrie. you testified on civil liberties that other concerns of civilian trials included and i'm quoting you, the physical security of civilians living in the area, the judges and staff working on those cases and the jurors selected for trial. is that something, those security concerns, is that something that we should still be concerned about in your view? >> absolutely. it's not just my view. it was actually the majority leader schumer's view at the type the obama administration was bringing sheik mohammed to new york. these concerns about the security of individuals if the detainees are brought to united states. not the detainees themselves but those that support them could be hugely problematic. the biggest threat today is home grown violent extremists. imagine if we brought their inspiration to the united states and tried them here. it could be hugely problematic. >> thanks to the witnesses for being here. >> senator blackburn. >> thank you, mr. chairman. i've been monitoring and listening to this hearing online up in my office. it is so interesting to me to get your different perspectives on this i really appreciate that. and a couple of times there's been mention of president obama's efforts to close this. as i was sitting there thinking through this and listening to your responses, my question is simply this. with the 39 detainees that are left there, so since that effort was made to close it, what has changed in regard to the danger that these 39 individuals pose to the united states? what has changed that would say, yes, we can let these people go, we can do something different? >> well, senator blackburn, certainly there is a process for reviewing all of these detainees that the obama administration set up for periodic review boards. at least 13 of the detainees have been qualified for transfer. when you transfer them, you want to ensure they're properly secured wherever they go. we want to make sure these particular ones are held in appropriate security assurances. but all of these 39 have been determined by the obama administration to continue to be held or tried at military skmigs. >> so nothing >> that's right. >> i think that's what is lost in this discussion. nothing that says they have been rehabilitated but evidence that shows that many go back. >> that's right. >> to creating terror. so, the withdrawal from afghanistan and then the taliban takeover, how does that affect these detainees and what does that do to, if they were released, their probable future? >> senator, it's hard to understate the creation of this new ungovern space in afghanistan where new terrorists are returning to the fight are now encouraging others to come there. you've got al qaeda returning there. you have the taliban government, the same government that supported and hosted osama bin laden the day of the 9/11 attacks and isis-k and problematic mix of terrorists in the afghanistan region and you have additional inspiration coming from the way in which we withdrew from afghanistan. the fact that we abandoned our allies and we made commitments to. all that contributes to the fact that -- >> the environment that we have created post the afghanistan withdrawal actually encourages activity from terrorists? >> absolutely. >> and if we release -- okay. let me ask you this. the countries that have accepted transfer of some of these in the past and mr. stimson, i'm going to direct this to you. have they been able to ensure that these individuals do not return to terrorist activity and what kind of agreement did we have with them to get that insurance that they won't go back to creating these, these attacks? >> senator, to my recollection we transferred detainees or released detainees, two different processes from guantanamo to 39 different countries. it's somewhere around that. the saudis and the amenis but dozens of other countries, too. in each one of those transfers except for the afghans, we had negotiated on a detainee by detainee basis with the receiving country and sought assurances that they would mitigate the threat that that particular detainee would pose. and i think we've had -- >> i think it's important to note that this is done on an individual basis? >> it is. >> one at a time. >> yes. we were doing that in the bush administration, the obama administration did that, as well, the bush bush administrat and each one of those are laborious and sometimes years long process. and some countries are very frank with us. saying, you know, we can only detain this person for about x period of time and we can't assure you that they will be held under our domestic law. and so to professor jaffers point the dni under two successful administration have tracked the number of detainees that are confirmed and expected of reingauging. i can tell you as a former prosecutor, i think the numbers have got to be higher because you only know what you know and you don't know what you don't know. so there are people who slipped through the cracks. >> these countries who agreed to take these detainees they make a best effort and they are not always successful in that effort. and the data that you have shows that. correct? >> yes. the data shows that. >> so, releasing these just like the 5,000 that got released from bagram air field makes the world more contentious and more dangerous and enables the taliban or other terrorist organizations to fill their ranks, correct? >> yes. the purpose of the detention is to shorten the war and deprive the opposing enemy forces of fighters by resupplying them with their own fighters, the war gets worse. >> and the war continues. >> yes. >> yield back. >> thank you very much, ms. kelly. i understand your brother bill was killed in the north tower on september 11th. i'm so sorry for your loss. thank you for taking the time to appear before us today. and i understand that in memory of your brother you spent the last 20 years trying to get justice for him and all those lost on 9/11. can you speak about your experience having watched over a dozen military commission proceedings, whether justice is being done and what is the best thing we can do to ensure justice for bo and those lost on 9/11? >> thank you for the question. so the arraignment of the 9/11 accused happened in may of 2012 and family members are permitted to watch these hearings from several sites on the northeast or five family members are chosen by lottery to travel to guantanamo to observe the hearings that way. our organization applied for an ngo observer status in 2015, specifically so we could send one family member to each hearing to closely observe what was happening. and through our time there and we're now the high 30s, maybe even into the 40s now of how many hearings have occurred, we've watched delay after delay after delay and then covid delay and more delays. so in 2017, we began exploring seriously what a pretrial agreement may mean. we talked to legal advisors, we talked to federal prosecutors, we've talked to people with legal expertise. and it seems at this stage in time we are not really closer in the commissions. we're still in pretrial hearings and at this moment in time, pretrial agreement could make things happen and could bring some resolution. >> that could bring some resolution. >> absolutely. >> okay. thank you. brigadier general baker, thank you for your 32 years of service in the u.s. marine corps. can you speak to how concluding the military commission proceedings can be done in a way that protects the security of the american people and do you agree with president bush's assessment that the detention facility became a propaganda tool for our enemies? >> thank you for the question and thank you for thanking me for my service. the negotiations of the pretrial agreements that have been talked about would be needed to be done in good faith by all the parties and there's been a demonstration that that can be done. the not doing that seems to be, seems to be the worst possible option. i do want to talk a little tiny bit about the delay that you asked ms. kelly about. three aspects that are causing the delay in these proceedings. the first and i use the acronym d.i.d. the death penalty. the death penalty is just keeping these cases going on and what seems to be inpertuity. the second, the second is intrusions. a history of government intrusions in the attorney/client relationship. and the third is the discovery. the overclassification and hiding of information that we can read about in the newspapers is just, has just put these cases and really kind of stopped them in the tracks. we can overcome, we can over come the d.i.d. acronym through negotiated plea agreements. >> in your testimony you actually described several violations of attorney/client privilege including the seizure of documents clearly marked as privilege and the placement of hidden recording devices in rooms where detainees confirmed with their attorneys. what effect did these attempts you mentioned it briefly to violate attorney/client privilege have on your staff and other attorneys serving as counsel for the detainees? >> it has set, i mean, these intrusions have set the hearings back literally years at a time. there is a hearing last month, closed classified hearing that looked at and looked into intrusions that occurred in 2017. so, it's delaying the procedures and it is, and we're hiding secrets that we read about in the newspaper. >> last question. major general leonard, thank you for your 37 years of service. my staff just told me. since the bush administration, presidents have expressed their intent to close the detention facility at guantanamo bay with president biden being the latest to state his intent to do so. and yet as we just discussed, despite the efforts of multiple administrations, the facility remains open. can you please talk to us about the steps that need to occur to finally close the facility and how we as a congress can act to ensure hat it is closed in a way that maintains the security of the american people? >> well, i'll be brief, senator. but, first, put somebody in charge with the authorities to work with all of the various government agencies who have actually done a pretty credible job. but there seems to be someone within the nse or the white house that can do this. the second part and, obviously, i think general baker and they have discussed this is the piece of bringing in the federal courts and negotiating plea agreements. and i do believe i am not an attorney, but i have been told that those federal courts can still operate on guantanamo bay's soil through video teleconferences and things of this nature. once we have taken the death penalty off the table. it seems to me that the desired outcome here, particularly for the families of individuals like ms. kelly here, is to get closure. and i would offer that once we have convictions and sentences and, by the way, i have no empathy for those individuals that committed these horrendous crimes. if they are locked up for the rest of their lives, so be it. but let's give the families closure and let's demonstrate to the rest of the world that we use the laws to hold our criminals accountable. thank you. >> thank you very much. and thank you, all. and also i wish i had more time. i'd ask the other witnesses questions. but for those that i spoke to, thank you for your clear and measured response. this is not easy, especially for you. but for anyone. i appreciate how you thought this through as a way to protect security, but do this in a way that gives the families the closure that they need. so, thank you. senator cruz. >> thank you, madam chair. >> for more than a decade, there has been a focus by barack obama and joe biden and their administrations. a focus that i find as inexplicable as it has been catastrophic. on freeing terrorists from american detention. in 2009, the obama/biden foreign policy team decided to close the detention facility at camp buka in iraq. by 2014, as isis was forming, it became clear that over a dozen of the group's top leaders had been freed from camp buka. those included aub baker al bagdadi and the founder. having learned nothing, that same team repeated the exact same mistakes. this time with the bagram as part of the catastrophic withdrawal. the images that americans remember of that catastrophe are of chaos and carnage. over 100,000 afghans, many of them unvetted and unvetable loaded on to airplanes to be deposited into the united states. taliban terrorists overrunning army positions seizing unaccountable numbers of advance weapons and technology. and parading them for global audiences. and, of course, the august 26th terrorist attack on the kabul airport in which an isis-k bomber killed 13 american service members. what is less well known is that that bomber had been imprisoned in the bagram prison, which until that summer had been under american control. the biden administration made a conscious decision, again, inexplicably to abandon that critical position and with it the high security prisoners housed there. having still apparently learned nothing, releasing terrorists, seeing them killing americans, releasing more terrorists and seeing them kill more americans. the biden administration is talking about doing it again. now they're talking about closing the facility at guantanamo bay. i think before that's even contemplated, we should have some sense of the toll that these catastrophic decisions have had. for instance, "the washington post" hardly a right-wing org has reported, quote, at least 12 detainees released from the detention camp at guantanamo bay, cuba, have launched attacks against u.s. or allied forces in afghanistan killing about a half dozen americans. so you have terrorists freed at camp buka, americans murdered. you have terrorists freed from guantanamo, americans murdered. you have terrorists freed from bagram and americans murdered and now the biden administration wants to free more terrorists. and we know to an absolute certainty the result of that would be more americans murdered. i want to ask the witnesses. i recognize the biden administration declined to send a government official charged with explaining the administration's policy. but let me ask all the witnesses assembled here. does anyone on the panel know a full account of the number of terrorists who were released from camp buka that went on to fight for isis or the al newsra front? we don't have that information. all right. how about this. does anyone know an accurate count of the number of u.s. service men and women that have been murdered by individuals we've set free from camp buka, bagram or guantanamo? we don't know how many servicemen and women have been murdered, but yet the biden administration is preparing to go down this road once again. the terrorists we find returning to the battlefield are just some of the ones we released. good reason to suspect they are not the only ones that returned to violence and terrorism. before we free more terrorists, we should get to know where the past ones have gone and where future ones are likely to go. professor jaffer, is there a rough estimate of where the terrorists freed from u.s.-run facilities have gone and to what extent and what level are those numbers tracked? >> so, senator cruz, i think the answer is that with respect to the terrorists that we transferred to other countries, we have security assurances from those countries for some period of time. those security assurances are not forever, as mr. simpson correctly laid out. typically negotiated on a one to one or one to few basis. but those we have a sense of. once they go out from the security assassurances, we don' know where they are. the others we released we don't necessarily know where everyone ends up. what we do know to a certainty is that 33%, roughly 32%, 31.5 have either returned to the fight, are known to return to the fight or suspected of it. those are from the director of national intelligence and we know that and that's a real problem. so, if you think about the 700 or whatever odd number of people released from gitmo, 229 have either returned to the fight somewhere in the globe. >> wow. okay. final question. of the 39 detainees that remain at guantanamo bay, roughly 20 are from nations without a fully functioning government. 14 of them are from yemen where enormous swaths of the country are ruled by terrorists. to what extent professor jaffer, are such countries able to track and secure terrorists and prevent them from murdering americans? >> they are not able, which is exactly why we cannot transfer them into those countries. >> thank you. >> thank you, senator. the dni, director of national intelligence, assesses that only 5%, 5 of detainees transferred since 2009 when current rules and processes for transfers were put in place are, quote, confirmed of reengaging, closed quote, in terrorist activities. that's ten persons total. two of whom are now deceased. 5%, not 30%. but even that number is misleading because it only takes 51% likelihood that a detainee is subsequently engaged in terrorist activity to count them as confirmed. the claim that there's 30% and i've heard it attributed to the dni which is inaccurate. the claim that there is 30% among former guantanamo detainees is misleading. that number includes individuals that are merely suspected of engaging in terrorist activities including based on a single source or hearsay. and it includes transfers that occurred before the current security arrangements used today were in place. the most recent dni report showed that 729 detainees have been transferred out of guantanamo out of its opening according to dni, 125 were confirmed of reengaging in terrorist activities. the vast majority of those, 115 of 125 were transferred during the president bush administration before today's processes were put in place. and i'd like to say a word about the taliban and afghanistan. if i recall correctly, the negotiations with the taliban for the final withdrawal of american troops began under the previous administration. it was president trump who was negotiating with the taliban and reached an agreement which would protect the americans and forces left in afghanistan until a certain date. it was president biden who inherited that negotiation. to say that there is no plan in place is to misstate the situation as it occurred. if i remember correctly, they were going through a process of discussing the evacuation of americans and american troops when the government of afghanistan left the premsis. and their departure created emergency situation. what the biden administration did do was execute a plan for evacuating 130,000 evacuees from afghanistan in a very brief period of time. to put that in comparison, the total number of evacuees in vietnam, 50,000. president biden evacuated some 130,000. so, that i hope will clear up the record a little bit in that regard. i want to thank the entire panel, witnesses for both sides for a good hearing. bringing out major issues that most americans would ask about in the course of considering the same question, if they do. and i sincerely hope they do. my feelings on guantanamo situation are well known. particular thanks to ms. kelly. appreciate you coming. you speak for a lot of people who, unfortunately, were victimized by that horrible day we'll never forget. i hope we can bring this to closure for you and your family and all others likely situated. i'm going to do everything in my power to, as chairman of this committee, to put this dark chapter behind us. but with some truth and some light as we bring it to conclusion. thank you, all, very much for joining us today. meeting stands adjourned. cspan is your unfunded view of government. we're funded by these television companies and more, including comcast. you think this is just a community center? no, it's way more than that. >> comcast is partnering with 1,000 community centers to create wifi enabled so students from low-income families can get the tools they need to be ready for anything. comcast supports cspan as a public service along with these other television providers giving you a front row seat to democracy. at least six presidented recorded conversations while in office. hear many of those conversations on "presidential recordings." >> season one focuses on the presidency of lyndon johnson. you'll hear about the 1964 act and the gulf of tonkin incident, the march on selma and war in vietnam. not everyone knew they were being recorded. >> certainly johnston's secretaries knew because they were taxed with transcribing and they knew they were taped as johnson would signal to them between an open door. >> you'll also hear blunt talk. >> jim. >> yes, sir. >> i want a report of the number of people assigned to kennedy on me the day he died and the number of assigned to me now. and if mine are not less. >> presidential recordings. find it on the c-span now mobile app or wherever you get your podcasts. download c-span new mobile app and stay up to date from live streams of the house and senate floor and key congressional hearings. the white house events and supreme court oral arguments. even our live interactive morning program "washington journal" where we hear your voices every day. c-span now has your covered. download the app for free today. sunday february 6th on "in depth." georgetown professor sheryll cashin will be our live guest to talk about inequality in america. her many books include the failures of immigration, place, not race and her latest "white space, black hood." join in the conversation with your phone calls, facebook comments, texts and tweets for sheryll cashin live february 6th at noon eastern on book tv on c-span2. next a hearing on competition and privacy in the tech industry. witnesses testified about the growing market concentration of companies like amazon and the negative effects their size have on consumers. the senate finance sub committee on 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