[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]






                                     

                         [H.A.S.C. No. 112-42]

 
           GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM

                               __________

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD

                             APRIL 13, 2011

                                     
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13

                                     
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              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                    ROB WITTMAN, Virginia, Chairman
K. MICHAEL CONAWAY, Texas            JIM COOPER, Tennessee
MO BROOKS, Alabama                   ROBERT ANDREWS, New Jersey
TODD YOUNG, Indiana                  LORETTA SANCHEZ, California
TOM ROONEY, Florida                  COLLEEN HANABUSA, Hawaii
MIKE COFFMAN, Colorado
               Michele Pearce, Professional Staff Member
                 Paul Lewis, Professional Staff Member
                      Famid Sinha, Staff Assistant


                            C O N T E N T S

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                     CHRONOLOGICAL LIST OF HEARINGS
                                  2011

                                                                   Page

Hearing:

Wednesday, April 13, 2011, Guantanamo Detainee Transfer Policy 
  and Recidivism.................................................     1

Appendix:

Wednesday, April 13, 2011........................................    17
                              ----------                              

                       WEDNESDAY, APRIL 13, 2011
           GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Wittman, Hon. Rob, a Representative from Virginia, Chairman, 
  Subcommittee on Oversight and Investigations...................     1

                               WITNESSES

Fried, Ambassador Daniel, Special Envoy for the Closure of the 
  Guantanamo Bay Detention Facility, U.S. Department of State....     3
Lietzau, William K., Deputy Assistant Secretary of Defense for 
  Detainee Policy, U.S. Department of Defense....................     2

                                APPENDIX

Prepared Statements:

    Fried, Ambassador Daniel.....................................    34
    Lietzau, William K...........................................    25
    Wittman, Hon. Rob............................................    21

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    [The information was not available at the time of printing.]

Questions Submitted by Members Post Hearing:

    Mr. Wittman..................................................    47
           GUANTANAMO DETAINEE TRANSFER POLICY AND RECIDIVISM

                              ----------                              

                  House of Representatives,
                       Committee on Armed Services,
              Subcommittee on Oversight and Investigations,
                         Washington, DC, Wednesday, April 13, 2011.
    The subcommittee met, pursuant to call, at 4:00 p.m., in 
room 2118, Rayburn House Office Building, Hon. Rob Wittman 
(chairman of the subcommittee) presiding.

 OPENING STATEMENT OF HON. ROB WITTMAN, A REPRESENTATIVE FROM 
       VIRGINIA, CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT AND 
                         INVESTIGATIONS

    Mr. Wittman. All right, folks, I think everybody is 
situated, so we will get started, in the interest of time. I 
appreciate everybody's efforts to accommodate us in today's 
busy schedule, but I want to make sure that we are respecting 
everybody's time.
    I want to welcome everybody to the Oversight and 
Investigations Subcommittee hearing on the U.S. Government's 
Guantanamo detainee transfer policies and procedures and the 
reengagement of some former detainees in terrorist activities.
    Earlier today, our subcommittee members received a 
classified briefing on these issues from our invited guests in 
a closed session; and we will examine these issues further now 
in an open hearing.
    I am going to enter my opening remarks for the record and 
dispense with those in the interest of time.
    [The prepared statement of Mr. Wittman can be found in the 
Appendix on p. 21.]
    Mr. Wittman. But before introducing our witnesses, I ask 
unanimous consent that non-subcommittee members, if any, be 
allowed to participate in today's hearing after all 
subcommittee members have had an opportunity to ask questions. 
Is there any objection?
    Without objection, non-subcommittee members will be 
recognized at the appropriate time for 5 minutes.
    Our witnesses today are Mr. William Lietzau, Deputy 
Assistant Secretary of Defense for Detainee Policy; Ambassador 
Daniel Fried, Special Envoy for the Closure of Guantanamo Bay 
Detention Facility, Department of State; Mr. Ed Mornston, 
Director of Joint Intelligence Task Force, Defense Intelligence 
Agency; Ms. Corin Stone, Deputy Assistant Director of National 
Intelligence for Policy and Strategy, Office of the Director of 
National Intelligence; and Mr. Brad Wiegmann, Principal Deputy 
Assistant Attorney General, National Security Division, 
Department of Justice.
    I want to welcome you all and thank you for your 
participation. As we previously arranged, only Mr. Lietzau and 
Ambassador Fried will make brief opening statements; and their 
written testimony, without objection, will be made part of the 
record. We look forward to Mr. Mornston, Ms. Stone, and Mr. 
Wiegmann responding to questions from the subcommittee members.
    I also want to remind my colleagues that we will use our 
customary 5-minute rule today for questioning, proceeding by 
seniority and arrival time.
    Mr. Lietzau, let's start with you; and then we will proceed 
to Ambassador Fried. Thank you very much.

STATEMENT OF WILLIAM K. LIETZAU, DEPUTY ASSISTANT SECRETARY OF 
    DEFENSE FOR DETAINEE POLICY, U.S. DEPARTMENT OF DEFENSE

    Mr. Lietzau. Chairman Wittman, thank you for the 
opportunity to be here.
    In order to take this job, I retired from the Marine Corps 
after more than 27 years of service, and I did so because I 
recognize the vital importance of this issue to our warfighting 
efforts and to our broader national security interests. For 
that same reason, I welcome your investigation and this 
opportunity to discuss our detention and transfer policies.
    Since its creation, the Office of Detainee Policy has 
worked closely with the House Armed Services Committee to 
develop durable detention policies that conform with our 
domestic and international legal obligations, uphold our 
national values, and protect and further our national security 
interests. Together, we have learned that there are many 
challenges when dealing with the complexities of detention in a 
21st-century, asymmetric armed conflict.
    In the first days of this administration, the President 
issued three executive orders that set forth a robust agenda to 
develop a more sustainable detention policy that reflects our 
values. Besides directing Guantanamo's closure, a policy to 
which the administration remains committed, the President 
ordered a comprehensive review of detainees remaining at the 
detention facility to determine the disposition most 
appropriate to each individual. This review, concluding in 
January 2010, involved a task force of senior officials from 
across the government. The recently signed executive order 
builds on this effort by providing a periodic review for 
covered detainees that again looks to the interagency for 
unanimous agreement on any decision to transfer.
    It is important to remember that a determination that a 
detainee is approved for transfer does not necessarily result 
in immediate departure from Guantanamo. The transfer 
designation flowing from the earlier Justice Department 
coordinated task force review or from a future periodic review 
board is only the first step in a process.
    Finding for a detainee a suitable location from both a 
security and humane treatment perspective is a delicate and 
difficult task. For that reason, Special Envoy Dan Fried and I 
co-chair an interagency process where we carefully assess all 
information related to transfer modalities and any new 
information arising since the task force review identified the 
detainee as a transfer candidate.
    Providing a context in which transfers fit, I note that 
they should not be viewed merely as a means towards the end of 
closing Guantanamo Bay. A transfer process is a necessary 
component to any law of war detention regime. Traditionally in 
war, militaries capture and detain individuals to mitigate the 
threat they pose in the ongoing conflict. Modern armed 
conflicts with transnational terrorist organizations severely 
complicate this effort. Membership is difficult to determine, 
and the scope of the conflict is difficult to define.
    Because of these complicating factors, over the years the 
Department has developed and refined a series of processes in 
Afghanistan, Iraq, and Guantanamo Bay, each of which is 
designed to protect our warfighters by removing threats from 
the battlefield, while ensuring that the United States does not 
detain someone longer than necessary.
    We must carefully weigh the costs and benefits of continued 
detention in our counterterrorism fight. Just as we do with 
prisoners of war in a more traditional armed conflict, we 
acknowledge that the threat detainees pose change over time. We 
cannot simply put belligerents back on the battlefield, but the 
absence of process to assess whether the threat warrants 
continued detention comes at significant cost in the 
cooperation and respect of allies and partners.
    To address these very complex matters, we must have a 
framework that is principled, credible, and sustainable. By 
principled, I mean it must provide fair and humane treatment to 
each detainee, including a process by which we can distinguish 
between a belligerent who poses a significant threat and one 
whose detention is no longer necessary. In order to be 
credible, this framework must advance the law in a way that 
imbues the entire system with legitimacy.
    Finally, the sustainability of such a framework depends not 
only on its principled nature and its credibility but on its 
ability to address the realities of 21st-century warfare. No 
review system will be perfect. We must be able to guard against 
belligerent reengagement, while still allowing for the full 
spectrum of transfer or prosecution options as alternatives to 
prolonged detention.
    The Department stands ready to work with Congress to 
further the requirements of a principled, credible, and 
sustainable detention policy. Thank you for your continued 
support, and I look forward to your questions, Mr. Chairman.
    [The prepared statement of Mr. Lietzau can be found in the 
Appendix on p. 25.]
    Mr. Wittman. Thank you, Mr. Lietzau. Ambassador Fried.

  STATEMENT OF AMBASSADOR DANIEL FRIED, SPECIAL ENVOY FOR THE 
    CLOSURE OF THE GUANTANAMO BAY DETENTION FACILITY, U.S. 
                      DEPARTMENT OF STATE

    Ambassador Fried. Chairman Wittman, thank you for the 
opportunity. I welcome the chance to offer background to this 
important and complex issue.
    Working closely with our interagency colleagues, the State 
Department has been involved in negotiations for the transfer 
of 67 detainees to foreign countries during this 
administration. This includes the transfer of 40 detainees to 
third countries, that is countries of which they are not 
nationals. We also follow the progress of former detainees, 
particularly these detainees resettled in third countries.
    The detention facilities at Guantanamo are modern and 
humane; and the men and women who run them are serious, capable 
professionals. Nevertheless, my years of working on this issue 
directly in this administration, indirectly in the last one, 
lead me to believe that the closure of the Guantanamo detention 
facility is in our national interest.
    The facility's existence does more to harm than improve our 
security. Indeed, for many years, the facility has constituted 
a net liability for our Nation and the world.
    Transferring detainees from Guantanamo and expressing the 
objective of closing it are not new. In 2006, President Bush 
publicly expressed his desire to close the facility; and the 
previous administration transferred 537 detainees from 
Guantanamo, including 198 to Afghanistan, 121 to Saudi Arabia, 
50 to Pakistan, and 14 to Yemen. These transfer efforts were 
publicly known but generated neither much credit for the prior 
administration nor much controversy.
    By January 20, 2009, there were 242 detainees at 
Guantanamo. Many already had been approved for transfer, and 20 
had been ordered released by Federal courts. Our allies and 
partners were calling for action to close Guantanamo.
    President Obama signed Executive Order 13492, which 
directed a comprehensive review of all remaining Guantanamo 
detainees and the closure of the facility. The Guantanamo 
Review Task Force and higher-level review panel established 
under the executive order reviewed 240 detainees. Decisions 
required unanimity among all the agencies represented on the 
task force.
    Of the 240 detainees reviewed, 36 were referred for 
prosecution, either in Article III courts or military 
commissions; 30 from Yemen were designated for ``conditional 
detention'' because of the deteriorating security environment 
in that country, meaning that they could be repatriated if 
security conditions in Yemen improved; 48 were determined to be 
too dangerous to transfer but not feasible for prosecution, and 
thus were designated for longer-term detention under the 
Authorization for Use of Military Force passed by Congress 
after the 9/11 attacks; and 126 were approved for transfer.
    My office focused on the 126 detainees approved for 
transfer. These included, first, detainees who could in theory 
be repatriated to their country of origin. This included 35 
Yemenis approved for transfer before security conditions in 
Yemen further deteriorated, and that is by far the largest 
national group of detainees remaining at Guantanamo. In working 
on repatriations, my office built on the experience of the 
previous administration.
    The second group approved for transfer included 57 
detainees who could not be returned to their countries of 
origin due to treatment concerns, and who therefore required 
resettlement in third countries. As a matter of longstanding 
policy both in this administration and the previous one, the 
United States does not send any detainee to a country where it 
is more likely than not that he will be tortured. This is 
consistent with U.S. implementation of its obligations under 
Article III of the Convention Against Torture. We take this 
obligation seriously.
    Because of the difficulty in finding countries willing to 
accept detainees not their nationals but also capable of 
mitigating whatever risk the detainee may pose, the bulk of my 
office's work focused on third-country resettlements. These are 
labor intensive.
    Each resettlement is individually tailored to the country 
and detainee concerned. We created solid channels of 
information sharing with potential receiving governments about 
detainees eligible for resettlement; we developed security 
assurances appropriate to the detainee; and we encourage 
measures to facilitate the former detainees' successful 
reintegration into the receiving country.
    We found that receiving governments approached detainee 
settlement with care and caution. They took their own security 
as seriously as we take ours. Often, it would take many months 
to conclude a single resettlement. The time and care invested 
were worth it.
    Our work does not end with the detainee transfer. We follow 
up with receiving governments to know how the resettlement is 
going, both to learn lessons and to determine where there are 
issues that need addressing. So far, our experience has been 
generally positive, though a number of issues, more related to 
integration than security, have developed.
    We are alert to the potential for reengagement. The 
interagency Guantanamo Detainee Transfer Working Group consults 
regularly and in real time, when appropriate, on issues that 
arise.
    Of the 126 detainees cleared for transfer, 59 remain at 
Guantanamo. Twenty-seven of these are Yemenis, and we are not 
planning to repatriate any, absent a court order, until the 
security situation there improves. The remaining 32 are 
candidates for either repatriation or resettlement, and we 
continue to assess each potential transfer case by case, and my 
office works on a daily basis with members of the working group 
about this process.
    My office has also the responsibility to help inform the 
Congress about detainee transfers. In that regard, some of the 
Guantanamo-related reporting requirements, such as the 15-day 
advance notification of all transfers, have facilitated this 
flow of information. On the other hand, new certification 
requirements on the transfer of detainees to foreign countries 
interfere with executive branch authority and hinder our 
ability to act swiftly and with flexibility during negotiations 
with foreign countries. Flexibility is vital to developing an 
arrangement that best addresses U.S. national security.
    The Guantanamo Bay detention facility has raised 
controversy and concern since it opened. Closing it remains in 
the national interest, but doing so raises complex and 
difficult legal, diplomatic, and security questions and 
choices. It is worthwhile discussing these and seeking sound 
solutions.
    For too long, the debate about Guantanamo has been 
polarized and, frankly, prone to extreme positions. As 
President Obama said in his 2009 speech at the National 
Archives, we seek to do what is right over the long term. We 
can leave behind a legacy that endures and protects the 
American people and enjoys a broad legitimacy at home and 
abroad.
    I hope these remarks and this whole process will help 
demystify the careful work that goes into transferring 
Guantanamo detainees abroad, and I look forward to your 
questions. Thank you, sir.
    [The prepared statement of Ambassador Fried can be found in 
the Appendix on p. 34.]
    Mr. Wittman. Thank you, Ambassador Fried. We appreciate you 
and Mr. Lietzau's opening comments there, and we will continue 
on with the hearing.
    I want to welcome Mr. Andrews here and offer to him, if he 
would like to enter a statement into the record or to make one 
for the opening, we are open for doing that.
    Mr. Andrews. Mr. Chairman, I would just reserve Mr. 
Cooper's right to do that in the future should he want to 
before the record closes.
    Mr. Wittman. Without objection.
    All right, we will move then to questioning, and I will 
begin the questioning. I will begin with Ambassador Fried.
    I wanted to know, are there regions or nations that are 
more likely to accept transferees from Guantanamo than others? 
And, if so, why or what are the specifics that they look at in 
whether or not they will accept detainees?
    Ambassador Fried. If you are referring to resettlements, 
that is, accepting detainees not their nationals, it has been 
principally European countries who have been the most 
responsive.
    Now, it is also true that when we look for countries we 
look for countries that are both willing to accept detainees 
but also capable, that is, have the capacity to mitigate any 
risk that the detainee may pose. So that number of countries 
quickly drops. But European countries have been very helpful, 
though not only European countries. In working for 
resettlements abroad, we do keep in mind the country's capacity 
and the nature of the detainee.
    Mr. Wittman. Very good. Are there reimbursements or 
payments that are made to nations or certain nations in 
exchange for resettlement of these detainees?
    Ambassador Fried. Yes, sir. Some countries--not--fewer than 
half the countries--but some countries have asked for and we 
have offered, I would say, defraying of some of their costs. 
These amounts have been reported to the Congress. The amounts 
are classified, but let me say that the greatest amount was 
under--per detainee, was under $100,000. So, yes, and I am 
happy to provide the details.
    Mr. Wittman. Very good. And one last question. If you can 
tell us a little bit about the due diligence that goes into 
place to determine what surrounds a detainee being sent to a 
country, whether it is resettlement or whether it is another 
set of conditions, if you can let us know a little more of the 
specifics about that.
    And then I know there has been some concern about detainees 
going back to some of the countries that are war-torn and have 
dealt with extremism and give us some of your thoughts about 
those particular transfers that have taken place with those 
countries.
    Ambassador Fried. I have to be very careful in an open 
session, so I will watch my words. And there is more to say in 
a closed session, and I am willing to keep working with the 
committee and with your staff, sir.
    With respect to resettlements, countries that agree to 
accept a detainee are taking on a responsibility to help that 
detainee find a new life and also a responsibility for 
security. We have found that governments have put in a lot of 
effort to making detainee resettlements successful. Language 
training, housing, vocational training, medical help, sometimes 
psychological help are all elements of this.
    When we discuss with a prospective receiving country a 
resettlement, we do want to know in advance what the 
resettlement will look like and in some detail. We also follow 
up with governments to find out how it is going. Our experience 
with resettlements has generally been positive, as I said.
    Repatriations are rather different. Repatriations, of 
course, mean the countries are going--detainees are going back 
to their country of origin. In the previous administration, 
they did so in rather large numbers, as I said. In this 
administration, we became cautious about repatriations, 
particularly to Yemen as the security situation deteriorated.
    This was not, I should add, a break with the previous 
administration. The caution had started in I think the last 
year or so of the prior administration, and we continued it. 
And, of course, President Obama suspended all repatriations to 
Yemen in early 2010.
    The challenges of a successful and secure repatriation to 
countries where there is conflict is obviously greater, and we 
benefit from DIA's [Defense Intelligence Agency] analysis 
greatly in making these determinations.
    I should also say, as a final point, that there are very 
few detainees cleared for transfer, either resettlement or 
repatriation, who are nationals of Afghanistan or Saudi Arabia. 
So that problem is a small one, simply due to the numbers--the 
remaining problem is small due to the numbers.
    Mr. Wittman. Thank you, Ambassador Fried. Mr. Andrews.
    Mr. Andrews. Thank you, Mr. Chairman. I thank the witnesses 
for your testimony.
    Ambassador, your statement is very factual and very 
helpful. I just want to walk you through it to be sure I 
understand it correctly.
    Prior to the present administration taking office, 537 
detainees were transferred from Guantanamo, is that correct?
    Ambassador Fried. Yes, sir.
    Mr. Andrews. And then on the day the administration took 
office, there were 242 detainees. Only 240 were included in the 
executive order because one had already been convicted and 
sentenced and the other committed suicide, is that correct?
    Ambassador Fried. Yes, sir.
    Mr. Andrews. Now we are down to 240. And of that 240, your 
focus is on the 126 detainees that were approved for transfer, 
correct?
    Ambassador Fried. Correct.
    Mr. Andrews. Let me understand. What is the substantive 
basis for the decision to transfer someone out? I am sure there 
are different rationales, but what is the basis for that 
decision?
    Ambassador Fried. The decisions on transfers were made by 
the review panel that was set up pursuant to the President's 
executive order. And this was an interagency group. Its 
decisions had to be unanimous. That is, if there was no 
unanimity, there was no decision to transfer.
    The group, the review panel, met weekly under the 
chairmanship of the Department of Justice. It reviewed files of 
detainees which provided the background of each detainee. The 
principal criterion was security. That is, could a detainee be 
transferred out of Guantanamo into conditions where any 
remaining threat that detainee represented be mitigated in the 
country to which he was going? That was the principal 
consideration.
    Mr. Andrews. Was there any like probable cause 
determination made of innocence or guilt of the person? 
Presumably--I am sorry, presumably, these people were detained 
in the first place because there was some degree of suspicion 
that they had either participated in some act of violence 
against the United States or perhaps were a great threat to. 
Were those concerns alleviated before the people were 
transferred?
    Ambassador Fried. I will defer at some point to my 
Department of Justice colleague, but since I sat on the review 
panel, I can answer some of this.
    After 2008, detainees had access to the habeas process in 
Federal courts; and one of the criteria that the review panel 
was supposed to use was the legal basis for detention. In other 
words, we were allowed to--in fact, instructed to look at this. 
But when we were looking at the detainees, the principal 
criterion was the threat that this detainee might represent and 
whether that detainee should be detained or could be 
transferred into a situation where there was any residual 
threat could be mitigated.
    Mr. Andrews. Let me ask you this question about no 
particular case, because it would be unwise to ask or have you 
comment. But, hypothetically, if a determination were made that 
a detainee had likely participated in some act of violence 
against the United States but there was a determination that 
for some reason the person wasn't likely to do it again or 
wasn't somehow a threat, would the person be detained or 
shipped out?
    Ambassador Fried. It was exactly these sorts of 
considerations that occupied the time and discussions of the 
review panel. We looked at everything we had in front of us; 
that is, the detainee's background, the degree of commitment to 
his struggle against the United States, the likelihood--the 
severity of his involvement, and the likelihood that he would 
reengage.
    Mr. Andrews. Can I just ask you this, though, as a 
rhetorical--and it is not meant to be a rhetorical question, 
frankly, but if we thought there was any reasonable grounds to 
think the person had committed an act of violence against the 
United States, why would we ever release any of these people?
    Ambassador Fried. The review panel took a look at the 
totality of the detainee. All of its decisions were unanimous. 
And, of course, the Joint Chiefs of Staff, the Defense 
Department, Intelligence Community were sitting on the panel, 
as well as the State Department, Department of Justice, and 
Homeland Security. We certainly did take into account any 
credible information in the file about a detainee's 
involvement.
    I am not talking about particulars, but I want to give you 
a sense of the sorts of factors we had to consider. Was the 
detainee actually ever in combat? Did the detainee participate 
in a terrorist act? Did the detainee participate in training 
but never actually did anything? Did the detainee not even 
participate in training?
    In other words, you had a variety of factors, and we made 
decisions based on the background of the detainee. But the 
question you posed, that is, did the detainee fight against 
American forces, was a major consideration.
    Mr. Andrews. But not a dispositive consideration?
    Ambassador Fried. Without going back into the files, each 
and every one, I don't want to make categorical statements, but 
I would say it was an important consideration.
    And, as I said, many detainees were not in the fight at 
all. They had had--I am not talking about any particular 
detainee--but maybe 2 weeks of training, never did anything, 
picked up while fleeing. No terrorism, no attacks on the U.S., 
not much of a history of commitment.
    But there were other detainees.
    Mr. Andrews. Thank you, Mr. Chairman.
    Mr. Wittman. Thank you. Mr. Conaway.
    Mr. Conaway. Thank you, and I apologize to the witnesses I 
didn't hear.
    But, Ambassador, I am struck, having been in this thing 
since 2005, that all of those folks who could have been 
released with the least amount of risk were in the 537 and that 
we had whittled this thing down to 242 really bad guys.
    Now this whole conversation has been held in a very sterile 
environment. We say ``resettlement,'' we say ``detainees,'' you 
say ``it is the struggle against the United States.'' That 
belies how dangerous these folks may very well be to this 
country, without getting to specifics on this thing.
    The other thing that occurs to me is your open bias against 
Guantanamo Bay colors your judgment as to whether or not these 
guys should be let go. Because one way to get rid of them is to 
let them go into resettlement, whatever that phrase means. And 
somehow if you could visit with us about how your bias to close 
Guantanamo Bay but for the greater good did not influence your 
decision-making when it came to looking at these guys who are 
the worst of the worst.
    If our review system, which all of these detainees have 
gone through multiple, multiple assessments as to who they are, 
what they are, what they did, and what they didn't do since 
they were detained, at least since 2005 when I came into the 
Congress, how we wound up keeping the shopkeeper or the farmer 
who got swept up on the battlefield by accident, how any of 
those were in the 242.
    So it is a little troubling about how cavalier and how 
sterile this conversation is. These are bad guys who either did 
or want to hurt Americans and may very well want to again. 
Their recidivism rate is high enough among the ones we did let 
go, even under the Bush administration, that it gives all of us 
involved in that idea or in that process great pause that, one, 
we make a mistake, a grievous mistake and let somebody go that 
we shouldn't, and they turn around and hurt one of our young 
men and women in this fight.
    So can you visit with me a little about my perception that, 
because you are so driven to close Guantanamo Bay, that that 
helped you with your decision as to who to let go?
    Ambassador Fried. Of course, it is the policy of this 
administration that Guantanamo should be closed. It isn't a 
personal policy. I happen to agree with it.
    But it was also----
    Mr. Conaway. It turned into a personal policy. It is weird 
that you would----
    Ambassador Fried. No, no.
    Mr. Conaway. Well, I don't want to be argumentative. Never 
mind.
    Ambassador Fried. President Bush also said he wanted to 
close Guantanamo.
    Mr. Conyers. We all want to, but whether or not we can is 
the issue.
    Ambassador Fried. But, to be clear, the administration's 
policy includes long-term detention for detainees who are 
deemed too dangerous to be released; and we believe--the 
administration believes that that is legal, justified, and 
prudent.
    You mentioned that the 242 that were at Guantanamo were the 
worst of the worst, the most dangerous. I believe you said 
that.
    Mr. Conaway. You would expect that given the process----
    Ambassador Fried. In some cases, that is certainly true. 
That is, the most dangerous detainees at Guantanamo are still 
at Guantanamo, and they were not let out under the previous 
administration. They are not going to be let out under this 
one.
    However, in some cases, the detainees--in other words, some 
of the detainees in that group of 242 were not more dangerous. 
They were not let out not because of any particular danger that 
they posed but because they could not be sent back to their 
country of origin.
    For example, when in January 2009, there were 17 Uyghurs--
that is a Turkic people, Chinese minority. They could not be 
sent back to China because of treatment concerns. They had been 
ordered released by U.S. courts, and there were no countries 
willing to take them. One of the jobs of my office was to find 
countries willing to take them, and we did so.
    Other detainees, for example, Syrians, Egyptians, Uzbeks, 
could not be sent back to their countries of origin.
    Mr. Conaway. I understand that. Excuse me, my time is about 
to expire.
    I also understand that there is a group there we all agree 
never gets let out, and then there is the rest. So the further 
down that food chain you go to get to that group that we never 
let out, the risks increase.
    I have got good confidence in you. You have let go all the 
Uyghurs and the folks who don't--but as you close on that 
number of folks who should not ever be let go, then you run the 
risk of letting somebody go that shouldn't be.
    So you really didn't address whether or not your personal 
bias and/or the administration's bias to close Guantanamo had 
an effect on letting people go that shouldn't have been let go.
    Ambassador Fried. I will answer that straight up. 
Absolutely not. I am perfectly comfortable and was perfectly 
comfortable on the review panel with decisions not to transfer 
detainees. That is part of the process. That is perfectly 
legitimate. That is a perfectly legitimate, justified decision. 
If it is a question of security and it is a judgment of the 
review panel that someone should remain at Guantanamo for 
security reasons or remain in detention for security reasons, 
that is a legitimate, valid call, fully supported.
    Mr. Wittman. Thank you. Mr. Coffman.
    Mr. Coffman. Thank you, Mr. Chairman. First of all, I just 
want to say that what we have is a politically driven failed 
policy and really maybe by both administrations. But certainly 
in 2000 I think the decision--when was the decision not to put 
any more prisoners in Guantanamo Bay? When was that decision 
made?
    Ambassador Fried. It was 2006 or 2007. The last 
administration. My colleague may know.
    Mr. Lietzau. The last detainee went in 2008. But certainly 
if you track how the detainees went in, there was a waning 
before that, making it clear that there was an intent to not 
put anyone there if you could avoid it.
    Mr. Coffman. Right. I think perhaps when candidate Barack 
Obama was running for the Presidency, he distinguished himself 
from his rivals by certainly using this as an issue. And I 
think not only did he convince the majority of the American 
electorate that it was an issue, but I think he convinced the 
international community at the same time that it was an issue.
    But I think the greatest failure of the policy is that it 
doesn't admit that we are a nation at war. That I think it is 
part of this administration's fiction that we no longer have 
the global war on terror, we have overseas contingency 
operations; and we no longer have terrorist attacks, we have 
man-caused disasters. So since we are removing certainly the 
vocabulary from the lexicon of war, we therefore need to close 
Guantanamo Bay.
    We still need it. Because there are still individuals that 
want to kill American civilians. And I really think that we 
ought to consider the lives of Americans as more important than 
the rights of terrorists, and that ties into military 
commissions versus bringing them to U.S. soil and trying them 
there. So that is just my view of the policy.
    Let me ask a question. Ms. Stone or Mr. Mornston, what 
impact has recidivism had on U.S. troops in Afghanistan and 
elsewhere? A news article earlier this week highlighted two 
former Gitmo detainees who were among America's most wanted, 
Mullah Abdul Qayum Zakir--if I am saying this right--and Mullah 
Abdul Rauf Khadim. Why were these detainees released from 
Gitmo?
    Mr. Mornston. Sir, there have been instances where 
detainees who have been transferred from Gitmo have reengaged 
and have been in the fight and have impacted the lives of U.S. 
service members. We do track that. I can't discuss that much 
further in this open session, but we do in fact know that that 
has happened.
    Mr. Coffman. Okay. Ms. Stone.
    Ms. Stone. Again, I would echo my colleague. We track that 
information, but we would have to discuss it further in a 
closed session.
    Mr. Coffman. When we resettle these terrorists because we 
no longer think they are a problem, yet we have had a 
recidivism rate of 14 percent that we know of--and, obviously, 
the rate is much higher than that, probably, and I think there 
is an admission that it is higher than that--what costs do U.S. 
taxpayers bear in the resettlement?
    Ambassador Fried. There are some cases in which the U.S. 
Government has offered to defray some of the receiving 
country's costs. Those figures have been reported to Congress.
    But in this--I can't in this session give the exact number, 
but I will say that the highest per detainee was under 
$100,000. This was used to defray housing costs, language 
training, costs associated with a successful and secure 
resettlement. But those figures are available, and they can be 
provided to this committee.
    Mr. Coffman. For the record, I would like them provided to 
this committee.
    [The information referred to was not available at the time 
of printing.]
    Mr. Wittman. Thank you. Mr. Rooney.
    Mr. Rooney. I will try and be quicker this time, Mr. 
Chairman. I know we are voting.
    During opening statements of both the gentlemen at the 
witness table, I kind of got the sense that there is this 
perception problem with Gitmo. I have heard it a million times 
before. You know, we are better off without Gitmo than we are 
with it, regardless of if you have gone down there and you have 
seen it, what is actually happening at Gitmo versus the 
perception of it.
    And one of the things that always bothered me was when you 
talk about these guys that can't be released because they are 
too dangerous, I mean, isn't there a perception problem with 
that, that we in America detain people? If we are going to try 
them, I assume some of these guys we are going to put through 
military commissions or Article III or whatever comes down the 
pike, and they are going to be found not guilty perhaps or 
guilty. But if they are found not guilty because of lack of 
evidence or because we gained evidence through what is now 
termed as torture and we re-detain them anyway, isn't there a 
perception problem with that internationally? That is just as 
bad as whatever people think of Guantanamo Bay, realistic or 
not?
    Ambassador Fried. There have been enormous perception 
problems with Guantanamo; and Guantanamo has been the subject 
of heated, exaggerated, and often highly polarized and 
inaccurate debate from both sides, from all sides.
    Guantanamo itself, the facilities itself are modern, 
decent, humane; and the people who work there should be given 
credit for doing a tough job and doing it, as far as I can 
tell, doing it extremely well.
    Mr. Rooney. Because I am running out of time, isn't that 
our problem then? Isn't that a leadership problem from both 
Bush and Obama, that we have let it become something that it is 
not globally? And don't we owe it to whatever we are trying to 
do down there and for whatever reason why to say to the 
international community, come to Guantanamo Bay and see what is 
really going on there, rather than just saying like, okay, we 
will shut it down? You know, we might end up detaining these 
people forever, even though they may be found not guilty.
    Ambassador Fried. Well, before I had this job, I was 
Assistant Secretary of State for European Affairs in the Bush 
administration; and I saw firsthand the liability that 
Guantanamo constituted for our country and the world.
    Mr. Rooney. How do you measure that? How do you measure the 
liability?
    Ambassador Fried. I will give you an example. Every time I 
went to Europe as Assistant Secretary and asked our allies for 
something, help in Afghanistan or some common project, it was 
as if I was sailing into the wind or swimming with a 50-pound 
weight tied to a leg--choose your metaphor--because of the 
problem that Guantanamo represented.
    Now, you might argue--and I might agree with you--that 
there was misinformation, a lot of the problems were 
exaggerated, there was a lot of ignorance. But it was a genuine 
problem. I don't want to see any American administration 
saddled with that sort of a problem in the future.
    Now, for the past 2 years, a lot of that problem has been 
alleviated. And I agree with you that it is important to make 
the case for a sound, sustainable, well-grounded detention 
policy which is not going to satisfy either extreme. This 
administration has sought to do it, and it is part of our job 
to explain it.
    Mr. Rooney. Can I ask you really quickly, the third-country 
transferees, are they released in the third country or are some 
of them released and some of them imprisoned by that country? 
How does that work?
    Ambassador Fried. Most of them, with the exception, in 
fact, of two who went to Italy for prosecution, all the others 
have been transferred for resettlement, which means they are--
--
    Mr. Rooney. Monitored.
    Ambassador Fried. In this unclassified session, I will say 
they are strongly assisted by the receiving government.
    Mr. Rooney. Ms. Stone, why doesn't the DIA provide the 
names of these individuals or publish the names of these 
individuals anymore as they used to?
    Ms. Stone. I will let my DIA colleague answer that.
    Mr. Mornston. Thank you for that question, Congressman.
    Mr. Rooney. I just wanted to stop picking on the Ambassador 
for a minute.
    Mr. Mornston. I understand. I am glad to take the heat off 
of him for a second.
    DIA publishes a classified report concerning the 
reengagement of individual detainees. We use all sources of 
intelligence, some clandestinely collected, some collected 
through open sources. But my big concern and the concern of the 
Intelligence Community is protecting those sources and methods.
    We do the work that we do to provide information that is 
used to warn our troops, inform our commanders and policymakers 
of the potential risks on the battlefield; and my strongest 
concern is that we perform that function and we can do that 
best by keeping that classified information in very closed 
channels.
    Mr. Wittman. Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman. Is it fair to say, 
Ambassador Fried or Mr. Lietzau, that some of the persons 
detained in Guantanamo were scooped up in operations that 
perhaps caught them in the wrong place at the wrong time but 
really there were no factual bases in place to support them 
being enemy combatants? Is that true? Real quick because our 
time is running out.
    Ambassador Fried. Okay. When I look at the Guantanamo 
detainees, at least the 242 that were there when this 
administration took office, I think it is best put in terms of 
a bell curve. At one end are truly dangerous people. The phrase 
``the worst of the worst'' applies to them. At the other end, 
there are people who may have been at the wrong place at the 
wrong time but not many of them.
    Mr. Johnson. And, of course, you came in at only 242 that 
were in, but it was a total of 779 since January of 2002, some 
of whom, I would argue, were just caught in the wrong place at 
the wrong time, scooped up, brought over. A decision was made 
either by the courts or by the Bush administration to release 
them. It was about 537 released under Bush. And of those 537, I 
think I show where 79 confirmed cases where detainees went out 
and reengaged, 79 of those detainees were released under the 
Bush administration watch. Would you disagree? Anybody?
    Mr. Lietzau. I think you are correct in both assertions. 
There were people in the first large group that were just 
scooped up; and they have been cleared out through previous 
processes, as Congressman Conaway was alluding to in his 
earlier question. And there are those who have reengaged, or in 
this case were found to have reengaged, may not still be in 
that status right now. But, yes, that mostly come from the 
earlier, larger group.
    Mr. Johnson. And only two confirmed cases of detainees 
being released under the Obama administration.
    Ambassador Fried. Three confirmed cases and two suspected.
    Mr. Johnson. All right. So now what you have been doing is 
evaluating these remaining 242, I believe, detainees. We know 
some of them, like the high-value detainees that we have, are 
going to stand trial. Others, we don't know whether or not they 
will stand trial or not. I seem to remember that there was an 
issue with there being an adequate file in existence on each 
detainee.
    Do we have any detainees down in Guantanamo at this point 
where we have that kind of a problem, where there is no file 
that documents any evidence against the detainee that could 
support a court case?
    Mr. Wiegmann. I will take that question.
    In the Guantanamo Review Task Force process, all the 
detainees were evaluated. One of the factors was how many of 
them could be prosecuted. There were only about 36 who were 
evaluated and determined they could be prosecuted, either in a 
military commission or a Federal Court.
    So for the remaining detainees down there, I think it is 
fair to assume--well, actually, the ones who are transferred 
are being transferred. But for those who are being kept, there 
is another 48 who, it is fair to assume, can't be tried. So 
there is 36 who can be prosecuted out of the 242.
    Mr. Johnson. So a civilized society like the one that we 
live in cannot be known as being a place where we can go and 
take a citizen from another country and hold them in prison or 
in detention, whatever you want to call it, forever. We just 
can't do that.
    Thank you.
    Mr. Wittman. Thank you, Mr. Johnson.
    I would like to thank our witnesses today for your 
testimony and responses. We have a vote on the floor, so we are 
going to need to head down there. But we appreciate all of your 
time and effort. We would appreciate your prompt response to 
any questions for the record that we may send you after this 
session. There may be some things that we weren't able to 
encompass in the time provided.
    We appreciate your patience and diligence through this 
process with us going in and out with votes and the other 
activities of the day. So we appreciate that and look forward 
to your answers to our written questions. Thanks again.
    [Whereupon, at 4:52 p.m., the subcommittee was adjourned.]
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                            A P P E N D I X

                             April 13, 2011

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              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             April 13, 2011

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                   QUESTIONS SUBMITTED BY MR. WITTMAN

    Mr. Wittman. For many years, the U.S. government has sought 
security and humane treatment assurances from countries prior to the 
transfer of detainees. How effective are these assurances? Where and 
under what circumstances have they worked and not worked well? Why have 
they not been effective in some cases? What needs to be done to ensure 
effective assurances are in place before transferring any detainees in 
the future? Please provide response in classified form, if necessary.
    Mr. Lietzau. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. Why did the U.S. government send detainees to war-
torn, unstable locations such as Afghanistan? Were detainees 
transferred to these locations even after cases of recidivism had been 
identified? Please provide response in classified form, if necessary.
    Mr. Lietzau. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. Given the rate of reengagement reported, were there 
errors in judgment with respect to transfer decisions? What lessons 
have been learned and to what extent have they been applied in more 
recent detainee transfer determinations? Please provide response in 
classified form, if necessary.
    Mr. Lietzau. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. Did the Executive Order Task Force review result in 
different assessments of the security threats posed by detainees? If 
so, please explain. Please provide response in classified form, if 
necessary.
    Mr. Lietzau. Of the 126 detainees approved for transfer by the Task 
Force, 63 had previously been approved for transfer during the prior 
administration, ordered released by a court, or both. The remaining 
detainees approved for transfer had not previously been approved.
    However, this result does not necessarily reflect a change in the 
threat assessment of each detainee. Rather, the decision reflects the 
best predictive judgment of senior government officials, based on the 
available information, that any threat posed by the detainee can be 
sufficiently mitigated through feasible and appropriate security 
measures in the receiving country. Indeed, all transfer decisions were 
made subject to the implementation of appropriate security measures in 
the receiving country, and sensitive discussions are conducted with the 
receiving country about such security measures before any transfer is 
implemented. Thus the assessment of the prospects for mitigating a 
threat in a receiving country is a key factor that may lead to 
different results over time.
    Moreover, the Task Force for the first time systematically 
consolidated information and expertise from across the United States 
Government and provided detailed guidance as to how both the detainee's 
threat and the ability of a receiving country to mitigate that threat 
should be evaluated. In all instances, the Task Force reviewed all 
prior threat assessments. In many cases, the resulting Task Force 
assessments were consistent with those prior assessments. In others, 
the assessments differed, just as security assessments made during the 
prior administration sometimes differed from one another or evolved 
over time. In some cases a different assessment could be based on the 
fact that the Task Force was evaluating a wider array of material than 
had been previously considered and that the input of all relevant 
agencies on the decision was received. In other cases, facts may have 
changed since prior assessments, including facts bearing on the 
credibility of some of the relevant evidence concerning the detainee or 
the situation in the potential receiving country.
    Again, all transfer decisions were ultimately based on the 
unanimous agreement of DOD, DOS, DOJ, DHS, the Joint Chiefs of Staff, 
and the Office of the Director of the National Intelligence.
    Mr. Wittman. In December 2010, the U.S. government reported that 25 
percent of former detainees from Guantanamo are confirmed or suspected 
of reengaging in terrorist activities. Do you believe this is an 
accurate estimate of the number of recidivists? Could it be much higher 
than what you confirm or suspect? What would be your best guess as to 
what the rate actually is?
    Please provide response in classified form, if necessary.
    Mr. Mornston. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. What impacts have recidivists had on U.S. troops in 
Afghanistan and elsewhere? A news article earlier this week highlighted 
2 former GTMO detainees who are among America's most wanted--Mullah 
Abdul Qayyum Zakir and Maulvi Abdul Rauf Khadim. Why were these 
detainees released from GTMO? Please provide response in classified 
form, if necessary.
    Mr. Mornston. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. The rate of former Guantanamo detainees confirmed or 
suspected of re-engaging in terrorist-related activities remained 
relatively constant during the years 2004 to 2008, at about 5 to 8 
percent. However, since 2008 the rate has increased to 25 percent. What 
accounts for this dramatic increase in the past 2 years? Is it due to 
the transfer and release of higher threat detainees, a change in 
reporting criteria, improved government monitoring, or something else? 
Please provide response in classified form, if necessary.
    Mr. Mornston. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. Are there particular groups of former detainees or 
countries where monitoring and follow-up is problematic? What is being 
done to increase our government's capacity to track these former 
detainees? Please provide response in classified form, if necessary.
    Mr. Mornston. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. The Defense Intelligence Agency previously published 
names of some former detainees suspected or confirmed of reengagement. 
This allowed the lists to be scrutinized by outside individuals and 
groups. Why did DIA publish these names in the past? Why does DIA no 
longer provide any specific names of individuals known or thought to be 
reengaged? Will it ever return to the previous practice? Please provide 
response in classified form, if necessary.
    Mr. Mornston. [The information referred to is classified and 
retained in the subcommittee files.]
    Mr. Wittman. What analysis has DIA conducted, or plans to conduct, 
to identify the key characteristics or factors associated with former 
detainees who have reengaged in terrorist activities? Please provide 
response in classified form, if necessary.
    Mr. Mornston. [The information referred to is classified and 
retained in the subcommittee files.]